My best guess is yes.
Two new COVID-19 vaccines are hurtling toward approval by the Food and Drug Administration and release to the public.
As a result, employers are asking whether they can require their employees to get the vaccine (once generally available) as a condition of coming to work.
We don’t have specific guidance yet, but here is my educated guess as to what the answer will be:
*Yes. Because of the public health crisis caused by COVID-19, all employers (not just health care employers) will be able to require employees to be vaccinated before they can return to the non-virtual workplace.
*However, employers will be required to make exceptions in some cases. If an employee has a medical condition that could be aggravated by the vaccine, or a sincere religious objection to receiving the vaccine, the employer should consider reasonable accommodation. Depending on the employee’s job, that could include letting the employee work in a more isolated spot onsite, or letting the employee work onsite while taking extra precautions, or moving the employee from a customer-facing role to one that has limited or no contact with the public. (There may be other options, as well.)
*If an employee has a legitimate reason for not being vaccinated but is in a position that can be performed remotely, the employer should let the employee continue working remotely. Remote work can be a form of reasonable accommodation.
*Presumably, employers with unions would be required to bargain before imposing a vaccination requirement unless the requirement would fall within a management rights clause.
*Requiring employees to be vaccinated (with exceptions for reasonable accommodation situations) may lessen employers’ potential liability for workplace safety complaints or workers’ compensation claims related to COVID-19.
Again, the above are just my guesses. And if an employer prefers a lighter approach, there should be no problem with urging employees to be vaccinated but not requiring it.
Robin Shea is a Partner with the law firm of Constangy, Brooks, Smith & Prophete, LLP and has more than 20 years’ experience in employment litigation, including Title VII and the Age Discrimination in Employment Act, the Americans with Disabilities Act (including the Amendments Act), the Genetic Information Non-Discrimination Act, the Equal Pay Act, and the Family and Medical Leave Act; and class and collective actions under the Fair Labor Standards Act and state wage-hour laws; defense of audits by the Office of Federal Contract Compliance Programs; and labor relations. She conducts training for human resources professionals, management, and employees on a wide variety of topics.
