Recently, the first round of COVID-19 vaccinations have been distributed across the nation, potentially signaling the endgame for the ongoing pandemic. This is undoubtedly good news, though it is not without some complications. One of the big questions that employers now face is whether they can or should mandate that their employees be vaccinated before returning to the physical workspace.

Is it Legal to Require Vaccinations?

As with all things COVID, there is much uncertainty. You can anticipate there being plenty of litigation surrounding the question of vaccination requirements.

With that said, a number of attorneys and HR experts have weighed in, and the consensus thus far is that most employers will have standing to require vaccinations. There is ample legal precedent for this; in the past, employers have been given the grounds to require their employees be vaccinated for the flu and other diseases.

One possible point of contention is that these past vaccinations have all been fully vetted and approved through normal FDA protocols, whereas the COVID-19 vaccines are being made available on an emergency authorization basis.

There is a chance, albeit a very remote one, that the vaccine could cause some side effects or complications that negate employer standing for a vaccination mandate. Again, there is plenty of uncertainty, so we’ll really just need to wait and see how things pan out.

What About Exemptions?

If your company does require vaccinations, you can expect some employees to ask for exemptions. Some employees will ask for exemptions based on illegitimate reasons, quite frankly, but others may have more valid concerns.

For example, it’s important that your company be prepared to provide a vaccine exemption for employees who have ADA-covered disabilities that prevent them from getting vaccinated. Note that, under the ADA, a vaccination cannot be required unless it is a business necessity and/or necessitated by a direct threat. COVID-19 does qualify as a direct threat, but some ADA-covered employees may have valid exemptions.

Something else to keep in mind is that Title VII requires that employers allow exemptions for those who object on the basis of sincerely held religious belief. Generally, personal anti-vaccination views or ethical concerns are not going to be sufficient for an exemption. However, the courts are going to come to differing conclusions about when a personal view crosses over into a true religious objection.

Can My Business Be Held Liable if it Doesn’t Mandate Vaccines?

Business owners have to be prepared for employees who protest the vaccine mandate, but they also need to consider an alternative outcome: By refusing to mandate COVID-19 vaccines, employers could also open themselves to legal liability, specifically claims that they are not providing a sufficiently safe work environment under OSHA guidelines.

Such lawsuits seem inevitable, and they are also unprecedented; we won’t venture a prediction as to how the courts will determine these issues, but we will note that any quasi-serious legal claim could cost your company massive amounts of money in legal fees.

For this reason alone, it’s advisable for business and HR leaders to be critical and deliberate in developing COVID-19 vaccination policies; take the right steps to make sure employees are safe, and also be sure to document those policies in as much detail as possible.

With any questions or concerns about these issues, we welcome you to reach out to us. Contact FullHR to discuss these complicated matters further.