December 22, 2020
The rollout of COVID-19 vaccines is underway. Although companies can generally require vaccinations, whether they should is subject to debate.
Many businesses anxious to return to normal have indicated they will mandate vaccines for employees. Some, like Qantas Airlines, have gone further and will require that customers show they have been vaccinated as well. These businesses reason that requiring vaccines will enhance workplace safety and profitability because employees and customers may choose them over companies not requiring vaccinations.
Other companies are concerned about negative reactions from employees or customers “mandated” to do anything. Given the political backlash over mask-wearing and other mitigation measures we have seen during the coronavirus pandemic, these concerns are not misplaced. Moreover, the rapid development and limited testing of the vaccines that are becoming available raise widespread concerns about their long-term impact and potential allergic reactions.
Courts have held that reasonable laws designed to protect public health do not violate individual liberty, which may be trumped for the common good. Accordingly, the public and private sector can mandate vaccinations, with some exceptions. In Georgia, for example, students must have a series of vaccinations before attending public schools. Medical and religious exemptions “not based solely on grounds of personal philosophy or inconvenience” are available, but students who opt out of vaccines on religious grounds may be excluded from public schools during an epidemic. Georgia law also provides that health officials can mandate vaccinations in response to an epidemic and can supersede religious exemptions.
No law requires or forbids private sector employers to mandate vaccines for employees, although Georgia requires that flu vaccines be offered annually to health care workers. Most employees in Georgia are employed “at will,” which means that an employer can mandate vaccinations for employees and fire employees who refuse.
The Occupational Safety and Health Administration (OSHA) has previously noted that while “OSHA does not specifically require employees to take [flu] vaccines, an employer may do so,” an interpretation that presumably would be extended to other vaccinations. Vaccine mandates, however, should be job-related and not absolute. Under the Americans with Disabilities Act, employers must provide accommodations, which could include exemptions from vaccine mandates, for employees with medical conditions that could be negatively impacted by a vaccine. An exemption is not required, however, if providing it would be an undue hardship on the employer or if the employee would pose a direct threat to others.
Recent guidance from the Equal Employment Opportunity Commission emphasizes that employers should conduct an individualized assessment to determine whether a direct threat exists by looking at the duration of the risk, the nature of the potential harm, the likelihood that the potential harm will occur, and its imminence. Finding a direct threat “would include a determination that an unvaccinated individual will expose others to the virus at the worksite.” If an employee who cannot be vaccinated poses a direct threat, the employee can only be excluded from the workplace if a reasonable accommodation cannot be provided, absent undue hardship, to eliminate the direct threat. For example, a long-term care facility might be justified in refusing an accommodation to an employee who works directly with a vulnerable population but not to a front office employee who has no direct contact with the vulnerable population.
Other laws may also be implicated. Title VII requires that employers accommodate employees’ sincerely held religious beliefs. A similar undue hardship exception applies. Under the National Labor Relations Act, employees may engage in protected concerted activity. Employers who take adverse actions against employees who collectively object to employer-mandated vaccine programs could face unfair labor practice charges. And while OSHA notes that an employer can but is not required to mandate vaccines, the laws it enforces provide that employers have a “general duty” to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to … employees.” In other words, employees in high-risk settings for virus transmission should be provided more significant mitigation measures than employees in low-risk workplaces.
President-Elect Biden and Governor Kemp have indicated that they will not mandate vaccines. Nevertheless, employers should monitor regulatory guidelines issued as vaccines become widely available and consult with legal counsel to ensure compliance with applicable laws.
While studies show that vaccines can prevent people from getting seriously ill and dying of COVID-19, whether they prevent infection and the spread of the virus is unknown. Accordingly, regardless of what companies decide about mandating vaccines, health experts caution that until there is widespread vaccination and a better understanding of the long-term efficacy of COVID-19 vaccines, mitigation measures such as masking and social distancing should continue.
Shawn Kachmar is an employment law attorney at HunterMaclean. He can be reached at firstname.lastname@example.org.
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