Can we require our employees to take a COVID-19 vaccine?

The U.S. Department of Justice’s (DOJ) Office of Legal Counsel issued an opinion in July 2021 stating that federal law does not prohibit private businesses and public agencies from mandating that employees receive COVID-19 vaccines available under emergency use authorization. To read the opinion, click here.

For business and public agencies to mandate vaccines, potential vaccine recipients must:

• Receive the FDA’s Fact Sheet
• Be informed of “the option to accept or refuse administration of the product”
• Be informed of “the consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks”
• Be informed of the fact that the FDA “has authorized the emergency use of the product” and of “the significant known and potential benefits and risks of such use, and of the extent to which such benefits and risks are unknown.”

All this information can be provided to the recipient through the vaccine fact sheet.

Pfizer Fact Sheet for Recipients & Caregivers

Moderna Fact sheet for Recipients and Caregivers

J&J/Janssen Fact sheet for Recipients and Caregivers

The U.S. Equal Employment Opportunity Commission (EEOC) Guidance also clarified in May 2021 that federal equal employment opportunity (EEO) laws do not prohibit employers from requiring employees to be vaccinated against COVID-19, as long as the employers meet relevant provisions of the Americans with Disabilities Act and Title VII of the 1964 Civil Rights Act. The update also clarified that employers may offer incentives for employees to get vaccinated. To learn more, click here.

This guidance did not differentiate between vaccines in use under an EUA and vaccines fully approved and licensed by the FDA. The guidance did note that it had received many questions about the type of authorization (EUA) currently applicable to the COVID-19 vaccines but stated that “is beyond the EEOC’s jurisdiction to discuss the legal implications of EUA or the FDA approach.” However as discussed above the DOJ has now stated that neither the statutory conditions of authorization nor the vaccine Fact Sheet prevents public or private entities from mandating vaccination.

Under The American Disabilities Act (ADA), updated 6/28/21, an employer may require a COVID-19 vaccination for all employees entering the workplace, provided certain requirements are met. To see those requirements click here.

Other Considerations

Practices, when considering a mandatory vaccine policy, need to take into account the potential practical consequences of mandating vaccines.  Will the benefit outweigh the consequences?

Things to consider:

• Staffing shortage
• How to meet ADA requirements for disability exemption or sincerely held religious belief exemption
  • Exemptions requirements by state:
    • NC – http:immunize.nc.gov/schools/ncexemptions.htm
    • SC – http:scdhec.gov/exemptions-school-vaccine-requirements
    • Virginia – http:law.lis.virginia.gov/admincode/title12/agency5/chapter110/section80/
    • PA – https://www.upsd.org/uploaded/Special_Ed/Religious_Exemption_Form.pdf
    • Florida – http://www.floridahealth.gov/programs-and-services/immunization/children-and-adolescents/immunization-exemptions/index.html

• Consequences for refusing vaccination
  • Termination
  • Weekly testing
  • Continuous mask wearing while in the practice
  • Reassigning job duties
  • Telework

HR Experts has addressed the mandatory vaccination policy with the following statement:

“While we often discourage jumping quickly to a mandatory policy there are some situations where mandatory policies are warranted.   There have been cases in the health care industry where employees were terminated for choosing not to be vaccinated.  These decisions have been challenged in court and at this point in states where there is employment-at-will like NC the decision to terminate based on business needs (healthcare mainly) have been upheld.

So, if you have a strong business need to ensure that all employees are vaccinated you can go forward in that direction but remember if they claim a disability exemption or a sincerely held religious belief exemption you cannot terminate them.  You can; however, require them to wear additional PPE and adhere to stricter safety guidelines or possibly move them to a position that is more isolated if you have one.

In conclusion, building a business needs plan is recommended and you should have an attorney review that plan.

More helpful information from National Law Review: https://www.natlawreview.com/article/can-employers-make-covid-19-vaccinations-mandatory”

You can find updated vaccine information at this link: COVID vaccines

For assistance with developing a vaccine administration policy, Curi members can contact HR Experts on-call HR consultant, Dee Brown (888.473.9778, dee.brown@callhrexperts.com) and also access  Vaccine Model policy templates and forms from the Fisher Phillips Vaccine Resource Center here.