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Will Employers Make the COVID-19 Vaccine Required?

December 22, 2020

Recently the news has been consumed with information about the development of the latest COVID vaccines and their recent distribution throughout South Florida and the U.S. Although the vaccines were developed in only a matter of months (a process that normally takes years of lab work and testing phases before even arriving at the approval process), scientists boast high efficacy rates

Despite these claims, some groups remain skeptical. Even some frontline workers, such as first responders, are reluctant to receive a vaccine. However, experts maintain that a majority of the population will need to receive the vaccine to achieve “herd immunity,” which will allow pre-pandemic life to resume.

For many, one of the most significant shifts that might come as a result of the vaccine will be returning to the workplace. Some employers have voiced strong support for continuing to allow employees to work from home, while many will be expected to physically return to their work environments. Many workers may be planning to receive a vaccine before returning. 

Is it Legal to Require a Vaccine?

However, the choice to receive the COVID vaccine may not be voluntary for everyone. While the vaccine options are in the midst of the approval process, businesses have an opportunity to decide whether they will impose the vaccine as a requirement for their employees.

As the vaccine is expected to arrive in South Florida in the coming weeks, this consideration is especially important for employers in our area. Florida law generally provides that parties may contract for anything that is not illegal or void against public policy. 

In states like Florida where the employer-employee relationship is at-will, there is stronger support for the idea that an employer has discretion to impose certain conditions on employment. Should an employee not comply with such conditions, they may face termination. In this sense, requirements to receive a vaccine are no different than many other requirements for employees. However, such a requirement may still spark a public policy debate over whether an employer should be permitted to require an employee to make certain healthcare decisions. 

Possible Exemptions for Getting the Vaccine

In addition to public policy concerns, such requirements by employers present some legal questions. Generally, an employer may legally require employees to get a vaccine, subject to certain exceptions. 

The main exceptions would fall under anti-discrimination laws. The Americans with Disabilities Act (“ADA”) provides that workers who do not want a vaccine for medical reasons are eligible to request an exemption. Under the ADA, an employer would need to provide an accommodation to such an employee, which could mean permitting the employee to work remotely. This may not be an unusual accommodation as an estimated 42% of the United States labor force has already been forced to work remotely because of the pandemic. 

Title VII of the Civil Rights Act of 1964 provides protections against employment discrimination based on race, color, religion, sex, or national origin. Therefore, if taking the vaccine is against a “sincerely held” religious belief, an employee may be able to avoid a mandate. This may also result in the employee having to work remotely as a compromise. However, employers may face serious challenges if an employee who is eligible for an exemption from the vaccine also cannot work remotely.

Other Possible Protections for Employees Who Decide Against the Vaccine

Employers and employees outside the State of Florida may have additional protections, such as other state’s labor laws, or where employment is not at-will. If a workforce is part of a union, a collective bargaining agreement may require negotiating with the union before requiring a vaccine. 

The National Labor Relations Act provides certain protections to employees to engage in concerted activity. This means that employers must exercise caution before taking adverse action against employees who collectively discuss, or object to, an employer-mandated vaccine. 

Another Option for Employers: Encouraging Instead of Requiring

Depending on the industry, employers must follow certain employment laws and regulations. In industries where greater social distancing is possible, or where person-to-person contact is low, vaccine mandates may not be justified or necessary. 

Employers might find greater success in instituting measures that encourage, rather than require, employees to receive the vaccine and continue to follow additional preventative measures. One way to institute this might be by offering certain incentives.

Due to the constantly-evolving landscape surrounding the vaccine and the issues presented, it may be wise to consult with an attorney before implementing such policies for employees. Employees who feel they have been discriminated against for refusing to receive a vaccine may also have negative consequences for an employer.

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