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.
