Can Employers Make the COVID-19 Vaccination a Requirement?

As the first doses of the COVID-19 vaccines are beginning to be administered, many employers are considering requiring their employees to receive the vaccination. While current guidelines indicate that employers can mandate employee vaccination (subject to religious and medical exemptions), some may face strong pressure for and against the implementation of such a mandate.

Here are some considerations for employers who may want to pursue a mandatory or voluntary vaccination program.

Why Require Vaccination?

It’s simple: to protect workers’ health and safety. The Food and Drug Administration (FDA) has classified the Pfizer/BioNTech vaccine as safe and effective, approving it for emergency use. Absences due to illness cost an estimated $227 billion per year. A mandatory vaccination program creates a workplace with fewer absences, reducing overhead costs and improving productivity.

Why Make It Optional?

An optional program gives your employees the opportunity to “do the right thing” while preserving their right to choose. Some employees may be opposed to receiving the vaccine, so providing them with an optional program lessens a company’s risk of being sued on the grounds of unlawful discrimination under the Americans With Disabilities Act (ADA) based on a medical condition, or under Title VII of the Civil Rights Act for their religious beliefs.

However, before you consider making a vaccination program optional or mandatory, you’ll need to consider something else: is it necessary?

Conduct a Needs Assessment

Before deciding if vaccinations should be mandatory or optional for employees, employers should conduct an individualized assessment when determining whether a direct threat exists. This assessment includes an analysis of:

  1. The duration of the risk.
  2. The nature and severity of the potential harm.
  3. The likelihood that the potential harm will occur.
  4. The imminence of the potential harm.

A direct threat would include a determination that an unvaccinated individual would expose others to the virus in the workplace. However, if an employee who cannot be vaccinated poses a direct threat to the workplace, the employer is obligated to provide them with reasonable accommodations to reduce the risk. If no reasonable accommodations can be made, only then may an employer take other action, such as excluding the employee from the workplace. 

Are you considering making vaccination a mandatory requirement or optional program in your workplace? HooverSlovacek LLP is dedicated to managing employer-employee relationships in Austin, Houston and throughout Texas. Visit our website or call (713) 977-8686 to learn more about workplace safety and law surrounding the COVID-19 pandemic.

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