January 14,2021
 
 
Question:

Jennifer, 

Can I require employees to take the vaccine? 

Thank you in advance. 
Dr. P


Answer:

Short answer, yes, but, there are exceptions for certain employees raising certain objections, as described in more detail below. If employees refuse and do not qualify or raise an applicable exception, and you would a waiver having the employee indemnify you, and you did not order our Covid Policies in the spring, email Taryn. 

Slightly longer answer on vaccinations - On December 16, 2020, the Equal Opportunity Employment Commission (“EEOC”) updated its guidance (which should not be confused with a statute of regulation) regarding workplace vaccination, and outlined the scope of a legally compliant mandatory workplace vaccination program. (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws).  

Based upon this most recent guidance, as well as  guidance issued by the EEOC and U.S. Occupational Safety and Health Administration (“OSHA”) concerning the earlier H1N1 influenza vaccine, a private employer may require vaccination as a condition of employment so long as it provides appropriate religious and medical exceptions.

The EEOC’s present guidance regarding the COVID-19 vaccine (as was the case with the influenza vaccine) is that employers should simply encourage employees to take the vaccine, rather than to mandate it. This is due to recognized exemptions for (i) health risk, health reasons; and (ii) religious belief objections.   However, employers may be more apt to require COVID-19 vaccination due to the perceived greater threat posed by the virus, and the possible threat posed by unvaccinated employees.  Those who do so, however, should carefully consider, among other issues: (i) the effect of a mandate on employee morale; (ii) how to appropriately respond to employer requests for exemptions; and (iii) possible workers’ compensation claims should an employee experience an adverse reaction to the vaccine.