With the recent rollout of the COVID-19 vaccine in Britain, Canada, and the United States, some employers are implementing policies that require employees to receive the vaccine prior to reentering the workplace. This poses thorny societal and legal issues.
While some people eagerly await the opportunity to be vaccinated, others are not so keen on the idea. Whether it is due to a pre-existing health condition, pregnancy, religious beliefs, or a general dislike of vaccines, many have decided against receiving the COVID-19 vaccine or, at the very least, plan to take a wait-and-see approach. That begs the question: can an employer require its employees be vaccinated as part of their employment?
Given the rampant spread of the virus—which includes, to date, over 300,000 deaths in the United States alone—there is no dispute that COVID-19 poses an incredibly serious health risk to the general public. Accordingly, employers have a reasonable argument in favor of mandating that employees be vaccinated before they reenter the workplace, in order to prevent a direct threat of harm to themselves, their colleagues, and, in some industries, customers and vendors.
However, it is expected that employers who enforce a vaccine policy will be required to make exceptions in certain cases. For example, employees who are unable to be vaccinated because of disabilities likely cannot be compelled to take the COVID-19 vaccine. In Massachusetts, General Law Chapter 151B is an anti-discrimination statute that includes protections for individuals with disabilities. Additionally, the American with Disabilities Act (ADA) is a federal law that prohibits discrimination against individuals with disabilities. Employers have an obligation to engage in the interactive process with employees who request reasonable accommodations. This may include situations where an employee requests that the vaccine policy not apply to them because of their disability. It remains to be seen whether a COVID-19 vaccination is a reasonable accommodation under applicable laws.
Other potential issues for employers include pregnant employees who are reluctant to take the vaccine due to potential childbirth complications, and employees who refuse to take the vaccine because of sincere religious beliefs. Sex (which includes pregnancy) and religion are both protected classes under M.G.L. c. 151B. Additionally, Title VII of the Civil Rights Act of 1964 is a federal law that prohibits discrimination on the basis of sex and religion. Employers may face legal claims if they, for example, terminate employees who refuse to take a vaccine because of their pregnancy or religious beliefs, particularly where there is evidence of disparate treatment and/or a failure by the employer to make accommodations.
Notably, the nature of the business also matters. Employers in particular industries could have a stronger argument in favor of a vaccination policy. Healthcare, travel, and retail are industries with constant face-to-face contact with the public and, therefore, all the more reason to stave off the virus. Conversely, companies with work from home policies may feel less inclined to enforce a vaccine policy. Additionally, in unionized workplaces, employees are encouraged to review the applicable collective bargaining agreement to see whether or not vaccines are referred to in any respect.
Aside from public safety, employers risk the threat of potential liability from employees who contract the virus in the workplace, and claim that the employer failed to maintain a safe workplace. Laws such as the Occupational Safety and Health Act are designed to ensure employers provide employees with safe work environments.
Employers are encouraged to pay close attention to guidance from the U.S. Centers for Disease Control and Prevention (CDC) – https://www.cdc.gov/ – the Equal Employment Opportunity Commission (EEOC) – https://www.eeoc.gov/ – and their trusted legal advisors, for up-to-date information on this very timely issue.