Can We Require Our Employees to Get a COVID-19 Vaccine?

On October 22, 2020, the United States Food and Drug Administration (“FDA”) approved remdesivir for the treatment of COVID-19, making it the first fully-approved treatment for coronavirus in the United States. With more than 10 COVID-19 vaccines currently in phase 3 clinical trials, it appears that the FDA could approve a vaccine by the end of 2020 or the beginning of 2021. In the coming months, many businesses, especially those whose employees interact with the public, will face a critical decision: can we require our employees to take a COVID-19 vaccine once it becomes available?

Although the U.S. Equal Employment Opportunity Commission (“EEOC”) has not directly addressed this question, the framework regarding mandatory flu shots is instructive. In its Pandemic Preparedness in the Workplace guidance, the EEOC notes that an employer can generally require its employees to take the flu vaccine so long as it considers accommodation requests on the basis of disability and/or religion. With recent polls showing that many Americans are reluctant to take a COVID-19 vaccine as soon as it becomes available, it is worth noting that objections on mere ethical or personal grounds are insufficient.

It remains to be seen in the coming weeks and months whether the EEOC will permit more stringent rules with respect to COVID-19 vaccines. Notably, the EEOC has previously stated that COVID-19 meets the “direct threat” standard, which allows employers to conduct more medical inquiries and testing than would normally be allowed. As this situation continues to develop, employers must consider whether they will require employees to take a COVID-19 vaccine and what reasonable accommodations can be made in response to exemption requests on religious and/or disability grounds.

For questions about this or any other labor and employment topic, please do not hesitate to contact the attorneys at Hoffman & Hlavac. To stay updated on this and the other key labor and employment law developments that affect your workplace, be sure to subscribe to our blog and follow us on social media.