September 2020

Legal Update: So, There’s a Vaccine (or two) for COVID… Now What?


By:  Wendy Tice-Wallner, Esq.

We have all been waiting for some good news on the development of a vaccine for COVID-19. Presumably, a vaccine will provide the fastest route back to normalcy. We will once again be able to enjoy a meal with friends at our favorite restaurant, our kids will be back in a real classroom, and we will be able to return to our workplaces. Sounds great. But for employers, the release of a vaccine will raise the critical question of whether to make vaccinations mandatory for employees who are anxious to restart their commute.

The legal issues surrounding mandatory vaccinations are varied and worthy of forethought. For an insight into the thicket, consider the diverse perspectives of employers, employees, vendors, visitors, customers and clients. The employer, as the business owner, wants to make sure that everyone who works for the business or uses the business’s services feels safe. It would be nice to be able to post a sign on the front entry announcing: “All of our employees have been vaccinated…so please enter without fear!” Employees will undoubtedly want to avail themselves of vaccinations provided free of charge by their employer, and will want to know that everyone in the workplace has been vaccinated.

With the possibility of a rush to market for minimally tested vaccines under the current administration’s Operation Warp Speed, the safety and efficacy of vaccines on the market will come under significant scrutiny from public and private sectors. The fact that a vaccine has been approved for use by the FDA, or recommended by the CDC, is unlikely to engender a high level of confidence, especially if side effects and contraindications have not been adequately studied.

Mandatory vaccinations for school children has been a controversial topic for years, with some states allowing for, and then revoking, personal exemptions for parents who wish to opt out. The vaccinations that have been mandated for schools have been well-studied and tested. One issue that will arise with a COVID-19 vaccine will be the questions of whether schools can require the injection of a new, and relatively untested vaccine for COVID-19 into growing bodies and minds.

The workplace is another matter. It might surprise you to learn that, subject to exceptions discussed further on in this article, employers have been permitted by law to require influenza vaccinations for their workforce. But the majority of employers choose not to use a mandate. This permissive approach results in varied levels of participation in voluntary vaccination programs, even in the health care industry. In 2018-19, 19.9% of health care personnel opted out of flu vaccination, a percentage that is similar to opt-out rates during the past four seasons (22.7% -21.0%).

Mandatory COVID-19 vaccines would likely place employers in conflict with their workers. According to a Gallup poll conducted between July 20 and August 2, one in three Americans say they wouldn’t get a COVID-19 vaccine today even if it were free and approved by the Food and Drug Administration. According to a Reuters/Ispsos poll conducted between May 13 and May 19, the most common reason that some Americans are nervous about the vaccine is the speed with which it is being developed, followed by fears that the risks will outweigh the benefits.

Assuming that public confidence in a COVID-19 vaccine increases over the next few months, what do you, as an employer, need to know about imposing a vaccination requirement on your employees if they are to return to work?

There are two major legal considerations limiting the right of private employers to mandate vaccines: State and federal laws protecting individuals with disabilities, and laws requiring accommodation for religious beliefs. Under those laws, employers must reasonably accommodate all disabilities and sincerely held religious beliefs unless doing so would cause the employer an undue hardship. The Equal Employment Opportunity Commission, which enforces these laws on the federal level, has issued guidance indicating that instead of a mandate, employers should “consider simply encouraging employees” to get a vaccine. Once a vaccine becomes available, and, absent a state law prohibiting mandatory vaccination, employers will have the discretion to require a vaccine. However, applying such a rule across the board would be ill-advised. Employers should ensure that it makes individualized assessments of declinations by employees who may be entitled to accommodation.

Besides making individualized assessments, requiring the vaccine will undoubtedly create a host of questions from employees, including questions about how the vaccine was selected amongst available options, whether the vaccine has been proven to be effective, and if so, for how long, and whether employees will have to be revaccinated if a better vaccine becomes available. And, because of the politicized culture surrounding COVID-19, employees may raise political objections to any requirement that they accept a vaccination before returning to the workplace. California’s Labor Code, for example, provides employees with protection for their political beliefs and prohibits discrimination based on those beliefs.

Mandatory vaccinations have always been a thorny workplace issue. The pressure to get COVID-19 vaccines to market will undoubtedly exacerbate the situation. Employers should proceed cautiously in implementing a mandatory vaccination policy, and make sure that they obtain competent counsel in administering any policy they choose to adopt.