The Scoop on Mandating Vaccines in the Workplace

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The Scoop on Mandating Vaccines in the Workplace

  • By: P.J. Van Ert

Recently, it was reported that a local California law firm was requiring its employees to obtain a Covid-19 vaccine. This was reportedly the first law firm to do so.  

The policy in question “encourages” all employees to get the vaccine as soon as they become eligible. The policy continues to require employees to practice public health safety guidelines when in the office or at firm events. Ultimately, the policy states that if an individual is not vaccinated or cannot get the vaccine for a medical reason, that employee must work from home.  The policy does NOT state that an individual without the vaccine cannot work for the firm. It simply dictates where the individual may work, in order to protect the health and safety of other employees.  Ultimately, in order to return to-in person, in-office work, an employee must show proof of having received the Covid-19 vaccine.

Inquiring minds want to know . . . is this legal?

At this early stage in the roll-out of the Covid-19 vaccine, it may be too early to predict if this type of policy will withstand scrutiny from a court challenge.  What we do know is, if you are thinking of a policy to require or mandate a Covid-19 vaccine, here are some things to keep in mind when drafting your policy.

The Equal Employment Opportunity Commission (EEOC) has stated that a mandatory vaccine requirement does not violate the Americans With Disabilities Act, and is not a mandatory “medical examination.”  However, employees with a “sincerely held” religious belief or medical reason may not be required to take the vaccine. Also, an employer may be required to offer accommodations to employees who cannot become vaccinated. 

OSHA requires employers to maintain a safe working environment for employees.

Cal/OSHA requirements have several Covid-19 provisions, but fall short of mandating vaccination. Employers are required to have a site-specific, written Covid-19 prevention plan or risk fines. Such a plan might, in some situations, necessitate a mandatory vaccination requirement.

Keep in mind, if your employees are covered by a collective bargaining agreement (CBA), or memorandum of understanding (MOU), a required vaccination is a condition of employment that may already be included as a term, or may need to be bargained with the Union prior to implementation.  

There is a fine line of balancing interests between safety in the workplace and the right to choose whether or not to get vaccinated, especially where employers may face liability for employees who contract Covid-19 at the workplace and where the vaccine itself may have unknown long-term side effects.  Surely, some employment lends itself to public safety measures and working from home. Other employment may expose employees to too many Covid-19 risks, such that a mandatory vaccine policy is warranted and more secure from challenges.

So, is it legal?  Yes, as long as the employer complies with the ADA and Title VII of the Civil Rights Act, a mandatory policy is lawful.  However, in general, it is recommended for employers to offer vaccinations to employees on a voluntary basis.

If you have questions about a mandatory or voluntary vaccine policy, reasonable accommodations for employees with disabilities and those employees whose religious beliefs conflict with receiving a vaccine, please consult your legal representation and HR professionals.