Mandating COVID-19 Vaccinations in the Workplace
By law enforced by the Occupational Safety and Health Administration (OSHA), employers have a responsibility to provide a safe workplace. This task has become increasingly difficult during the COVID-19 pandemic. With the availability of an FDA-approved COVID-19 vaccination on the horizon, the question arises whether employers can require employees to take the vaccine as a condition of employment.
New York Assembly Bill 11179 was introduced on December 4, 2020, which, if passed, would allow public health officials to mandate COVID-19 vaccinations to New York State residents who are not developing sufficient immunity and are not otherwise medically exempt. However, presently, no state or federal laws exist that require individuals to take the COVID-19 vaccine.
Currently, OSHA does not require employees to take vaccines to ensure a safe workplace, however, it does not prohibit employers from imposing such a requirement. On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance that indicated that employers could mandate a COVID-19 vaccination as a condition of employment, with certain exceptions for:
Employees with a disability which prohibited them from safely receiving the vaccine, or
A sincerely held religious belief.
The EEOC guidelines also note that pre-screening vaccination questions should be “job-related and consistent with business necessity” to avoid implicating provisions of the Americans with Disabilities Act concerning disability-related inquires. The EEOC’s guidance echoes its previous stance on mandatory flu vaccinations in the workplace. The updated guidelines can be found here: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
Be aware that providing bonuses or other financial incentives to employees to encourage them to take the COVID-19 vaccine may be viewed as discriminatory because they exclude employees who opt-out of vaccinations due to the religious or disability related exemptions.
Obviously, these are complicated times raising complicated employment law issues, so please do not hesitate to contact us anytime with questions.
If you have any questions regarding the issues discussed above or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Stephanie Hoffmann, the author of this piece, here or at (585) 258-2814.