Michael J. Davey, Esquire
Employment Law Department
Eckell Sparks Law Firm
With Pfizer’s announcement that it plans on submitting a formal request with the FDA for emergency use approval of its coronavirus vaccine “[w]ithin days,” it seems like we are inching closer to a COVID-19 inoculation becoming reality.
Which brings up an interesting question for private employers outside of the healthcare field: can they (or should they) require all their employees to get the vaccine?
First, one might ask: “can my employer make me get a COVID-19 vaccine?” The answer, generally speaking, is yes. Private employers in the healthcare industry—hospitals, doctor’s offices, nursing homes, etc.—have been mandating employee vaccinations (like an annual flu shot) for years. It makes perfect sense that people who work in healthcare field should be required to get vaccines, given the potential and likelihood of their contracting or spreading the disease to or from patients, many of whom already have compromised immune systems.
But there is nothing that legally prohibits private employers outside the healthcare industry from doing the same thing. For some employers—like those who already have all their employees working remotely with no plans to return to a physical office space—mandatory vaccinations probably aren’t needed. But for other employers that cannot operate (or cannot operate effectively) without having on-site workers who have regular interaction with the general public (think restaurants, for example), mandatory vaccinations might not only make good business sense, but it might be a business necessity.
A few caveats, though (what legal article wouldn’t be complete without a general rule and then a bunch of exceptions?): employers cannot institute a mandatory vaccination policy unless they make exceptions for an employee’s disability or sincerely-held religious belief.
As to the first, if an employee provides a note from his/her treating physician that the employee should not receive the vaccine due to an underlying medical condition, the employer has an obligation to excuse the employee from a vaccine mandate, unless doing so would result in a direct threat to health in the workplace.
If an employee refuses to get a vaccine due to a religious objection, however, the landscape gets significantly muddier. The employer should examine those claims on a case-by-case basis, and try to determine whether the employee’s objection is truly grounded as part of a deeply-held religious belief, as opposed to a philosophical, moral, medical, or personal one. Not an enviable (or easy) task.
Finally, any employer who decides to implement a mandatory COVID-19 vaccination policy should do so in writing (with the above exemptions and any others clearly spelled out). It would also be advisable that the employer either make the vaccinations available to the employees free of charge, or reimburse employees for any costs associated with receiving them.
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