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Labor/Employment

Sep. 30, 2020

Can employers require employees to receive a COVID-19 vaccine?

Neither the courts nor federal agencies have addressed whether an employer-mandated COVID-19 vaccination requirement is lawful or even advisable.

Karama jackie

Jackie Karama

Associate, Norton Rose Fulbright

Email: jackie.karama@nortonrosefulbright.com

Jackie is an associate in the firm's Los Angeles office, where she focuses on business and corporate litigation. Jackie also represents employers in inspections, investigation and enforcement actions involving Cal/OSHA.

Henderson joshua

Josh Henderson

Partner, Norton Rose Fulbright

Email: josh.m.henderson@nortonrosefulbright.com

Josh is a Labor & Employment partner in the firm's San Francisco office. He represents employers in wage-hour litigation and counseling, discrimination and whistleblowing cases, and has a national practice in traditional labor and OSHA.

As researchers around the world race to develop a safe and effective vaccine against COVID-19, many U.S. employers likely are asking whether they will be able to require that their employees receive a COVID-19 vaccine before returning to the office or other common workplace. Currently, neither the courts nor federal agencies such as the federal Occupational Safety and Health Administration and the Equal Employment Opportunity Commission have addressed whether an employer-mandated COVID-19 vaccination requirement is lawful or even advisable. However, previous guidance issued by OSHA and the EEOC, as well as state laws concerning an employer’s right to require vaccinations (such as the influenza or hepatitis B vaccines), may be instructive. If the past is any guide, the answer is a tentative “yes,” but with several caveats.

OSHA Guidance

During the 2009 H1N1 outbreak, OSHA took the official position that employers may require employees to take the influenza vaccine, but it emphasized that employees should first be “properly informed of the benefits of the vaccinations.” There are, however, certain limitations on the employer’s ability to require vaccination as a condition of employment. OSHA further explained that employees who object to vaccination because of a reasonable belief that they “have a medical condition that creates a real danger of serious illness or death (such as serious reaction to the vaccine) may be protected under Section 11(c) of the Occupational Safety and Health Act of 1970 pertaining to whistle blower rights.”

In addition, a guidance issued by OSHA in August of 2014 states that “[d]epending on the pandemic, a vaccine may or may not be available to protect people from illness. If available, employers may offer appropriate vaccines to workers to reduce the number of those at risk for infection in their workplace.” The guidance fails to mention whether an employer may require an employee to take a vaccine. Presumably, requiring employees to be vaccinated against COVID-19 could similarly be justified by the employer’s need to promote a safe and healthy workplace and to reduce the risk of occupational exposure to COVID-19.

Further, OSHA’s Bloodborne Pathogens Standard (29 CFR 1910.1030) requires employers to provide vaccinations to prevent occupational exposure from bloodborne diseases such as hepatitis B. The standard mandates that employers must provide free vaccinations to all employees who have a reasonable risk of exposure to blood or other bodily fluids during the course of their employment. Employees, however, may decline the vaccine if they sign a mandatory form acknowledging their voluntary decision and that they remain at occupational risk of hepatitis B infection. Cal/OSHA, and other states’ worker health and safety plans, have similar requirements and declination forms.

EEOC Guidance

In 2009, the EEOC issued guidance addressing whether employers covered by the Americans with Disability Act and Title VII of the Civil Rights Act of 1964 can mandate that their employees obtain the influenza vaccine. In its publication, “Pandemic Preparedness in the Workplace and the Americans With Disability Act,” the EEOC concluded that even during a pandemic, the ADA and Title VII require employers to provide exemptions from mandatory vaccination requirements or other accommodations to employees with medical disabilities or religious objections unless it would result in undue hardship to the employer. Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation to employees. Under Title VII, “undue hardship” is defined as “more than de minimis,” or minimal cost to the operation of the employer’s business, which is a lower standard than under the ADA. Due to the legal and practical limitations posed by a mandatory vaccination requirement, the EEOC ultimately recommends that “ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”

On March 21, the EEOC influenza vaccine guidance was updated to address questions that employers may have during the COVID-19 pandemic. In its updated guidance, the EEOC found that the community spread of COVID-19 meets the ADA’s “direct threat” standard and a significant risk of harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace. This finding has allowed employers to conduct certain health screenings and medical tests, such as temperature checks, that the ADA would usually forbid. The EEOC has not yet given any indication that this “direct threat” finding applies to mandatory COVID-19 vaccinations. Thus, it remains to be seen whether the “direct threat” standard will allow employers to require that their employees obtain a COVID-19 vaccination once its available.

State Mandatory Vaccination Laws

Generally, states have an inherent police power to promote the public health and safety of its inhabitants. Thus, in Jacobson v. Massachusetts, 197 U.S. 11 (1905), the U.S. Supreme Court upheld a mandatory vaccination law against a due process challenge that the law violated civil liberties. Jacobson has been invoked as legal support for shelter-in-place orders during the pandemic. Pursuant to this police power, some state governments have enacted mandatory influenza vaccination requirements as a condition of employment for health care workers. But most states allow exemptions for medical reasons or religious beliefs. Some states, such as California, Illinois, and Maine, also allow exemptions for philosophical beliefs.

Finally, other states like Oregon (Or. Rev. Stat. Section 433.416) have enacted regulations that provide that health care employers must offer vaccines for infectious diseases, but cannot require workers to get vaccinated as a condition of employment. Accordingly, employers who are considering a mandatory vaccination policy should also take into account state laws that may prohibit mandatory vaccinations or allow employees to opt out. 

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Ilan Isaacs

Associate Legal Editor
ilan_isaacs@dailyjournal.com

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