COVID-19 Vaccines at Work: Can My Employer Mandate?

The long-awaited COVID-19 vaccine is finally here, and the population is reacting in a variety of ways. Some people are desperate to move ahead in the line of prioritization and get their vaccination, while others are unwilling or reticent about being among the first to receive vaccines that are not yet fully licensed by the U.S. Food and Drug Administration (FDA).

For many people, whether to vaccinate will be their own choice, and hopefully one made after a thorough review of scientific and medical evidence regarding vaccine safety and efficacy, and after consulting with one’s own physician, where appropriate.

But can an employer insist that an employee get the COVID-19 vaccine?

The two vaccines currently on the market in the United States have “Emergency Use Authorization” status from the FDA and have not yet been fully licensed. Pursuant to that status, persons receiving the vaccination must do so voluntarily, among other requirements. Some commentators have raised serious questions about whether any employer can mandate a vaccination under these circumstances – prior to full licensing of these vaccines.

However, in mid-December, the U.S. Equal Employment Opportunity Commission (EEOC) released guidance suggesting that employers can mandate that employees receive a COVID-19 vaccination – at least, if they do so without running afoul of the American with Disabilities Act (ADA) or the protections against religious discrimination in Title VII. This new guidance is an update to the existing guidance on how federal anti-discrimination laws impact employer policies in response to the pandemic. The update adds a new Section K at the end, dealing with employer-required COVID-19 vaccines, and states that vaccination is not a “medical examination” under the ADA, meaning employers are not restricted by the ADA’s normal rules applicable to employee medical examinations.

But just because vaccinations are not “medical examinations” under the ADA does not mean that federal Equal Employment Opportunity laws do not apply. The EEOC cautions that pre-vaccination questionnaires may constitute medical examinations (for example, if they ask whether the employee has ever had an allergic reaction to a vaccination), and therefore are subject to ADA standards. In addition, employers who attempt to mandate vaccination still will have to participate in the interactive process with employees who request exemption as a form of accommodation pursuant to either the ADA or Title VII, for purposes of medical and religious accommodations, respectively. Sections K.5 through K.7 of the updated EEO guidance address issues involving employees who seek exemptions from vaccination requirements as accommodations for disabilities and for sincerely held religious beliefs.

That leaves many workers wondering, can my employer fire me for refusing to get the vaccine?

Most states, including Pennsylvania, are “at-will” employment states. That means that, absent an illegal reason for termination (such as a termination in violation of federal or state EEO laws or other statutory protection, evidence that the termination violates the public policy of the State, or some other contractual protection, such as a union contract), employees generally can be terminated for any reason.

Whether termination for refusal to receive the COVID-19 vaccination would be deemed unlawful in a particular instance remains to be seen and would depend upon the facts and circumstances of the individual case. However, early guidance suggests that employers can require employees to get vaccinated.

But workers are not without protections. Beyond the reasonable accommodation obligations that employers have pursuant to federal EEO laws (and, in many places, their state equivalents), one of the many benefits of union representation is that employees who are represented by a union have the ability to make their voices heard on this important topic. A union can demand bargaining over the decision to mandate vaccines and/or the effects of that decision upon the workers. In addition, and despite employer attempts to contest the issue, if there are known side effects for a mandatory vaccination, an employee whose employer mandates vaccination and who experiences the known side effects may be entitled to workers’ compensation benefits, depending upon the workers’ compensation law in your particular state.

If you have questions about COVID-19 issues impacting your job, the labor, employment and workers’ compensation attorneys at Willig, Williams & Davidson can help you navigate the ever-changing impact of the coronavirus pandemic upon the workplace. Contact us today.

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