Can You Require Your Employees to Get Vaccinated?

On December 2, 2020, the United Kingdom became the first country to approve the COVID-19 vaccine jointly developed by pharmaceutical companies Pfizer Inc. and BioNTech SE. Nine days later, the U.S. Food and Drug Administration issued an emergency use authorization, clearing the way for the vaccine’s distribution in the United States to medical professionals, nursing home residents, and other high-risk individuals.

By the time you read this, it is very likely that another vaccine developed by Moderna will have been approved in U.S. as well. Clinical trial results indicate that both vaccines are about 95% effective in preventing COVID-19. That it is likely only a matter of months until these and other manufacturers’ vaccines become available to the general public is certainly cause for optimism, that we are on the road to the end of this horrible pandemic, and the devastating effects it has had on people’s lives and businesses.

However, while many are celebrating these recent developments, there are some who will be unwilling to roll up their sleeve and get vaccinated. Concerns and fears stoked in large part by misinformation (a.k.a. “fake news”) on the internet regarding the safety of these vaccines (all of which have undergone rigorous testing) will cause many to refuse vaccination.

According to a recent Gallup poll, nearly 42% of U.S. adults said they would not submit to vaccination (down from 50% in September, but still a very significant percentage). Reasons given to the pollsters for not wanting the vaccine include: the speed with which the vaccines have been developed, a desire to wait and see if the vaccines are safe, a desire to wait and see if the vaccines are effective, and for some, a general distrust of all vaccines. Other reasons people might give for declining vaccines include religious objections to being vaccinated, and concerns that an existing disability will be exacerbated by receiving the vaccine.

From a business perspective, many employers are wondering, “Can we require that our employees get vaccinated?” The short answer is “yes.” As a general matter, employers can require that their employees get vaccinated. However, as I mentioned above employees may refuse to get vaccinated due to a disability or their religious beliefs, and both such objections are potentially protected by laws such the Americans with Disabilities Act (ADA), the New York State Human Rights Law, the New York City Human Rights Law, and Title VII of the Civil Rights Act of 1964.

Employers faced with such objections must explore what reasonable accommodations might exist that would permit the employee to work without having been vaccinated (for example, requiring that the employee wear a face mask, social distancing and/or remote work). If documentation is provided that confirms an employee cannot be vaccinated due to a disability or medical condition, it is important that such records and information be kept confidential, as required by the ADA and other laws.

What about those employees who refuse to be vaccinated because they simply distrust the vaccine, or have some other non-protected reason(s)? Can you fire them? Should you fire them? The non-compliant employee after all might be one of your most valued and/or experienced staff members.

Is it riskier to your business to allow that employee to work (with a mask, social distancing and other precautions), or to fire him and have to train someone else to do his job?

Employers need to tread carefully when dealing with an unwilling employee. Threats of termination and similar ultimatums should be avoided as they carry with them the risk of a potential lawsuit. Instead of digging their heels in, employers should ask the employee for their reasons for not wanting to get vaccinated. Perhaps there is a concern about cost (the government is providing the vaccines for free, but health care providers are entitled to charge for the cost of administering the vaccine, and not everyone has health insurance). Or a concern that the employee will have to take time off from work to get vaccinated. Or a concern about reported side effects in those who have been given a vaccine.

Concerns like these can easily be addressed by offering to pay the vaccination costs, paying employees for time spent getting vaccinated, and/or paying employees for time spent recuperating following vaccination.

Rather than imposing a mandatory vaccination policy, employers might instead want to consider offering incentives to those employees who get vaccinated promptly. Such incentives might include extra paid time off, monetary bonuses, gift cards, and other perks. If you implement such incentives and keep copies of any vaccination records, the records must be retained as confidential medical information.

In conclusion, you can mandate that employees get vaccinated against COVID-19, and while risky and not recommended, you can take action in response if an employee refuses to do so. Employers faced with a non-compliant employee (or who have received requests for accommodation due to disability and/or religious objections) would be wise to consult with counsel prior to taking any adverse action against an employee.

Article by Lawrence I. Cohen

Laurence I. Cohen is a partner with Pike, Tuch & Cohen, LLP, a Bellmore, NY-based law firm.

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