The Food and Drug Administration (“FDA”) recently issued emergency use authorizations for COVID-19 vaccines. As the vaccines become widely available, more employers will consider whether to mandate vaccinations for employees. While generally employers may mandate vaccinations, there are some additional considerations with the COVID-19 vaccine.

A key consideration is the Americans with Disabilities Act (“ADA”), which generally requires that a disability-related inquiry or medical examination of an employee be job related, consistent with business necessity, and no more intrusive than necessary. With the COVID-19 pandemic continuing to spread, the direct threat COVID-19 poses to the workplace may be sufficient to meet the ADA’s requirement. Many healthcare employers require employees to receive the influenza vaccine and have successfully demonstrated that the inquiries related to the flu vaccine are job related and consistent with business necessity.

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance to employers concerning COVID-19 vaccinations. The guidance indicates there is a difference between vaccine availability under an emergency use authorization granted by the FDA and availability through an approval under FDA vaccine licensure. For the vaccine distributed under the emergency use authorization, the EEOC noted that the person distributing the vaccine must ensure the recipient is notified they have an option to accept or refuse the vaccine. Although the EEOC did not directly address the question of whether an employer can require employees to receive the COVID-19 vaccination, the guidance addressed questions posed as if the employer does require the vaccination when it is available. The EEOC explains that if an employer requires vaccinations, the employer may have a qualification standard that includes a requirement that an individual should not pose a direct threat to the health or safety of individuals in the workplace. Further, the EEOC explains that an employee may be entitled to an exemption from a mandatory vaccination requirement based on a disability that prevents the employee from taking the vaccine and entitles the employee to a reasonable accommodation under the ADA.

There are a variety of federal, state, and local laws at play when it comes to mandatory COVID-19 vaccinations. At this point, generally, we believe employers should consider encouraging, or even strongly encouraging, the vaccinations, but not mandating them. It is absolutely best to consult with an experienced employment lawyer to determine the best course of action for your business before taking any actions.