Can employers mandate the COVID-19 vaccine?

With the recent arrival of the first doses of the COVID-19 vaccine, many employers are beginning to consider how the availability of a vaccine will shape their workplace policies. Employers, under the Occupational Safety and Health Administration, have an obligation to provide a workplace “free of serious hazards,” and that obligation has led to many employers questioning whether they should require that all employees receive the COVID-19 vaccine once available. At the time of publication, neither OSHA nor the Equal Employment Opportunity Commission have directly addressed or issued any guidance on mandatory vaccine policies.

Implementation of a mandatory vaccine policy will likely be a controversial issue within the workplace, with some employees desiring for their coworkers to be vaccinated and other employees strongly disagreeing with such a policy. Employers who are considering a mandatory COVID-19 vaccine policy should first carefully consider the necessity of such vaccine in the individual workplace setting.

Generally, employers are not able to require employees to vaccinate unless there is a direct business need or if failure to vaccinate would be a direct threat to the workplace. For example, a requirement for a flu vaccine is allowed in settings like hospitals and medical practices but generally not in traditional office settings. The highly contagious nature of COVID-19 may change the understanding of a “direct threat,” potentially widening the net of employers that could require vaccination. Even with this expansion, however, employers would still need to make considerations such as the necessary proximity between employees and the amount of interfacing employees are required to undertake with the public before implementation of a vaccine mandate.

After the initial business necessity and direct threat assessment, employers still considering mandating COVID-19 vaccines should then consider the actual implementation of such policy. Employers considering this requirement would likely be responsible for the cost of the vaccine for employees and would need to develop a policy on verifying that an employee was properly vaccinated. Any record of vaccination must be treated as a medical record.

Employers considering mandatory vaccination would also need to consider potential liability of a mandate. While initial reports signal high efficiency of the vaccines, the rapid development and potential unforeseen consequences leaves many concerned about receiving a vaccine so soon after its development. This raises a question as to whether a reaction from a mandated vaccine would be considered a workplace injury, opening the employer up for a workers compensation claim. Further, employers would want to consider what reasonable accommodations may be offered for employees who object to the vaccine due to either a religious or disability reason.

Practically, employers that have not traditionally been allowed to require vaccinations should consider strongly encouraging employees to receive a COVID-19 vaccination and providing assistance to obtain the vaccine. For example, offering on-site, free vaccinations, similar to the frequent flu vaccine offerings, may encourage employees to receive the vaccine without imposing a mandate.

Any employer seeking to craft a policy that suits their individual workplace needs should consult with their legal team to work through the many potential implications.