Three pharmaceutical companies, AstraZeneca, Moderna and Pfeizer, have announced COVID-19 vaccines, which the director of the National Institute of Allergy and Infectious Diseases, Dr. Anthony Fauci, has announced could be available as early as late December 2020.[1] Governor Mike DeWine announced some Ohio health care professionals could receive the COVID vaccine as early as Dec. 15, 2020.[2] If and when these vaccines become available, can private employers require employees to take the vaccine?

Because there is no law or regulation that directly addresses this issue, employers considering a mandatory COVID vaccination policy should analyze how mandatory flu vaccination policies have been interpreted. In the absence of state or local law to the contrary, employers may require employees to get vaccinated from the flu. However, even in a pandemic, the Equal Employment Opportunity Commission (EEOC) has emphasized that an employee may be exempt from a mandatory vaccine if the employee has a disability covered by the Americans with Disabilities Act (ADA) that prevents them from taking the vaccine.[3] An exemption would be considered a reasonable accommodation under the ADA unless there is undue hardship, which the ADA defines as significant difficulty or expense for the employer.

Additionally, an employee may be excused from the vaccine mandate under the religious accommodation provision of Title VII of the Civil Rights Act of 1964. An employee may be exempted if taking the shot would violate his or her sincerely held religious beliefs, practices, or observances.[4] An employer must provide a reasonable accommodation unless it would pose an undue hardship, which under Title VII is “more than de minimus cost” to the operation of the employer’s business. This is a lower standard than the undue hardship standard under the ADA.

If an exemption under either of these laws is requested by an employee, employers should engage in an interactive dialogue with the employee to determine whether a reasonable accommodation would enable the employee to continue to perform their essential job functions without compromising the safety of other employees, patients or customers. Potential accommodations could include (but are not limited to) additional personal protective equipment (PPE), moving the employee’s work station, a temporary reassignment, teleworking, or a leave of absence.[5] Although, subject to these exemptions, the EEOC does not prohibit employers from mandating vaccines, it recommends private employers consider encouraging employees to take the vaccine rather than requiring employees to take the vaccine.

It is possible the EEOC may approach the COVID-19 vaccine differently than its traditional position on mandatory flu vaccinations. From the beginning of the pandemic, the EEOC has recognized COVID-19 meets the higher threshold “direct threat standard,” which allows employers to conduct more extensive medical inquiries and controls than normal.[6] As the EEOC noted in its Pandemic Preparedness in the Workplace and the Americans with Disabilities Act Guidance, COVID-19 supports a finding that “a significant risk of substantial harm would be posed to having some with COVID-19, or symptoms of it, present in the workplace at the current time.” Further, other federal agencies have issued guidance documents in support of COVID-19 vaccinations. For example, the Centers for Disease Control (CDC) has issued guidance recommending vaccination for critical industries, including health care and community support agencies.[7] Additionally, the Center for Medicare & Medicaid Services (CMS) issued an Interim Final Rule to help remove administrative barriers creating potential delays to patient access of a COVID-19 vaccine.[8]

Employers considering mandatory vaccination policies should consider relevant EEOC, CDC, and state guidance. For specific questions about mandatory vaccine policies, employee matters during COVID-19, state and local COVID-19 requirements, or about managing Title VII or ADA obligations, please contact your Dinsmore labor and employment attorney.