Be careful with mandating vaccinations before reopening offices

The FDA’s approval of COVID-19 vaccines for emergency use will result in employers considering the adoption of mandatory vaccination policies for their employees. Firms operating remotely may attempt to require employees to return to an office location by relying on a mandatory vaccination policy. However, the FDA’s position is that federal law prohibits mandatory use policies for any drug approved through the agency’s “Emergency Use Authorization” protocols.

In earlier vaccination efforts, employees have claimed that mandatory vaccination policies result in religious discrimination in violation of Title VII of the Civil Rights Act of 1964. They have also claimed that such policies can result in disability discrimination in violation of the Americans with Disabilities Act.

At the outset of the COVID-19 pandemic, the EEOC updated its publication, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, which was originally issued in 2009 in the wake of the H1N1 virus pandemic. In this publication, the EEOC confirms that COVID-19 presents a “direct threat” that provides employers with great latitude in questioning employees about their health status and in determining whether they should be allowed to be present in the workplace.

The EEOC also answers the question of whether an employer may lawfully require employees to be vaccinated during a pandemic regardless of their medical conditions or religious beliefs. The response is that employees may be entitled to an exemption from a mandatory vaccination policy based on an individual’s ADA-qualified disability or the employee’s religious beliefs. The EEOC points out that this would be a reasonable accommodation for an employer to make, barring undue hardship on the employer, stating that employers “should consider simply encouraging employees to get the vaccine rather than requiring them to take it.” However, the EEOC’s answer to the mandatory vaccine policy question was developed before the approval of a vaccine. There may be a change in the agency’s position based on CDC guidance now that the FDA has approved a COVID-19 vaccine, with more approvals forthcoming. It is possible that government authorities will endorse mandatory vaccine programs and provide clarification or guidance in view of the FDA’s stated position that individuals must be provided with a choice in regard to taking any drug that was approved through the agency’s emergency use process.

Aside from the legal issues, employers considering a mandatory vaccine policy should evaluate the employee relations aspects of the policy. While the FDA has gone to great lengths to provide assurance that all approved COVID-19 vaccines will be safe and effective, the agency acknowledges that there is no vaccine or any other medical product that is 100% safe or effective. Accordingly, employers must be prepared with a response when employees object to being forced to undergo COVID-19 vaccination as a condition of employment. This will be a volatile issue that has the potential to create considerable discord and strife in the workplace. Appropriate communications with employees must be developed. And as always with personnel issues, it is prudent to discuss options with legal counsel before establishing a mandatory vaccination policy.

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