As COVID-19 vaccines become increasingly available, employers are asking with greater frequency whether they should encourage employees to get the vaccine or mandate it as a condition of employment.

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance stating that the COVID-19 vaccine is not considered a medical examination under the Americans With Disabilities Act (ADA). Based on this guidance, there is a general consensus that employers may require employees to be vaccinated before returning to work, subject to several exceptions. These exceptions include employees who are not able to receive the vaccine due to a medical issue, and employees who refuse to receive the vaccine due to sincerely held religious beliefs.

The full analysis of whether to adopt a mandatory vaccination policy, however, is not so simple. Employers grappling with this question should take into consideration several other legal and practical issues, such as:

  1. The three current COVID-19 vaccines have been approved through Emergency Use Authorization (EUA), which is not a full licensure under the Food and Drug Administration regulations. At least two lawsuits have been filed challenging the legality of mandatory vaccines on the grounds that the vaccines were only approved on a EUA basis.
  2. The EEOC’s guidance is one agency’s interpretation of one law, the ADA. The EEOC’s guidance does not provide employers immunity and does not prevent employees from challenging the legality of mandatory vaccinations on other constitutional, statutory, and common law grounds.
  3. While resistance to getting the vaccine appears to be diminishing, there continues to be a significant amount of vaccine hesitancy. According to a recent CNN poll, 26% of adults say they will not try to receive the vaccine. How will an employer respond if a quarter of its employees refuse to comply with a mandatory vaccination policy?
  4. Employers who adopt a mandatory vaccination policy should treat employees who refuse to be vaccinated (not due to medical or religious reason) consistently. Will an employer treat a senior manager who refuses to be vaccinated in the same manner as an entry level employee?
  5. While the vaccines are considered safe by federal and state agencies, does an employer face legal exposure if an employee, under threat of termination of employment, reluctantly gets the vaccine and develops severe side effects? Does an employer face the possibility for adverse publicity? These issues, and others, have prompted a vast majority of employers to encourage, rather than mandate, employees to become vaccinated. However, an increasing number of employers, particularly in the health care and education sectors, are implementing or seriously considering implementing, a mandatory vaccination policy. Each employer should conduct an individualized assessment of its business needs and workforce in making this determination.

Nick Zaino is a partner and co-practice group leader of the firm’s Business Services Group. He practices primarily in the area of labor and employment law and has extensive experience counseling, representing, and training employers on all aspects of the employment relationship.

This information is for educational purposes only to provide general information and a general understanding of the law. It does not constitute legal advice and does not establish any attorney-client relationship.