In December, the Equal Employment Opportunity Commission (EEOC) issued guidance clarifying that employers can require their employees to get the COVID-19 vaccination as a condition of working onsite, provided that, if an employee opts not to receive the vaccine, the employer must engage in an individualized analysis of whether an exception is necessary to provide a required reasonable accommodation due to a disability (under the Americans with Disabilities Act) or a sincerely held religious belief (under Title VII). Employers must also respect the rights of any pregnant employees that are reluctant to take the vaccine, given there is limited data on the safety of administering the vaccine to pregnant women.
Despite the EEOC’s guidance, many employers have publicly announced in recent weeks that they will opt to encourage, not mandate, the vaccine. Some employers have even gotten creative, offering employees gift cards, priority in scheduling, and time off as incentives for getting the vaccine. Here are a few of the major factors employers are taking into consideration when making their final decision:
- Emergency Use Authorization (EUA). The COVID-19 vaccine is an EUA, as opposed to FDA licensed. Under an EUA, the FDA may allow the use of unapproved medical products, or unapproved uses of approved medical products in an emergency, such as a global pandemic, when certain statutory criteria have been met, including that there are no adequate, approved, and available alternatives. Naturally, some employees will be hesitant, afraid, or against getting the vaccine for reasons that are entirely valid to them.
- Employee Morale. For some positions, employers may not be able to show that unvaccinated employees pose a direct threat that cannot be addressed through other means. Mandating the vaccine for some, but not others, or forcing employees to do something, especially against their will or wishes, could significantly affect morale.
- Legal Risk. There have been a lot of legal unknowns arising as a result of COVID-19. Similarly, there are inherent legal unknowns for employers that choose to mandate the vaccine. For example, an employee that is fired for refusing to get the vaccine for personal choices that do not qualify as an exemption may try to argue that such act of refusing to get the vaccine is a legally protected activity and file suit for discharge in violation of public policy. Many of these unknowns will be left to the court to decide.
- Health Risk. While science suggests the vaccine will provide significant protection from serious complications of COVID-19 for the recipient of the vaccine, there is no data showing whether vaccinated individuals can transmit the virus to others. Accordingly, the vaccine should not be viewed as an escape from the current restrictions that employers have in place.