This article was updated on Monday, Dec. 21 to reflect recently updated guidance on COVID-19 vaccinations and employers from the Equal Employment Opportunity Commission.

With vaccinations against COVID-19 beginning to be administered on Monday, Dec. 14 in the United States, employers in the promotional products industry and beyond are contemplating what, if any, workplace policies they might implement regarding the inoculations.

Of course, the formulation of any such policy should be performed in close consultation with attorneys who are experts in such matters. That said, the information below may help employers (and employees) understand the current discussion around potential workplace COVID policies.

Q: Can private employers require employees to get vaccinations?

A: Broadly speaking, yes, they can.

“Under the law, an employer can require employees to be vaccinated, and if they refuse, fire them,” says Rogge Dunn, a Dallas-based attorney and head of the firm Rogge Dunn Group.

Attorney Rogge Dunn

In a guidance updated in mid-December 2020, the Equal Employment Opportunity Commission (EEOC) indicated that, in general, companies have the legal right to mandate that employees get a COVID-19 shot. “The EEOC guidance clearly indicates that employers can require employees to get the COVID-19 vaccine,” say attorneys from law firm Husch Blackwell in a legal analysis. Also, “the EEOC’s guidance confirms that employers may request proof of vaccination from employees,” the firm relates.

A recent analysis by global law firm Morgan Lewis points out that EEOC policy is consistent with prior guidance from the agency, which in 2009 issued pandemic preparedness guidelines that explicitly state that employers could require employees to get the flu vaccine. Similarly, in a 2009 letter of interpretation, the Occupational Safety and Health Administration (OSHA) said employers that want to require employees to receive a seasonal flu vaccine could do so, Morgan Lewis attorneys share.

Nonetheless, some legal experts note that the COVID vaccinations available now and in the near future are coming to market under emergency approval from the U.S. Food & Drug Administration. That can complicate matters for employers wishing to mandate the shots.

Attorneys for Washington, D.C.-based labor/employment law firm Conn Maciel Carey assert that a member of a federal advisory panel on immunizations has said that vaccines approved under the FDA’s Emergency Use Authorization (EUA) cannot be mandated, in part because there’s a lack of long-term safety data.

Even if that’s born out to be the case, Conn Maciel Carey maintains that it’s likely that employers will ultimately be on solid legal ground in requiring COVID vaccinations. “Absent a state or local law to the contrary, and outside the EUA context, private employers will very likely not be prohibited from implementing a mandatory COVID-19 vaccination program to keep the employees and the workplace safe,” Conn Maciel Carey says.

Q: Are there situations in which an employee would be exempt from a company’s vaccination mandate?

A: Absolutely.

Dunn explains that anti-discrimination laws prohibit discrimination against employees who refuse a vaccine because of a sincerely held religious belief. “Employees with such religious beliefs are exempt from a company-wide COVID vaccine mandate,” he explains, adding that such laws apply to companies with 15 or more employees.

Conn Maciel Carey notes that a sincerely held religious belief, practice or observance can be “fairly broad and include more than traditional organized religions,” though the law firm adds that “personal anti-vaccination positions generally will not be sufficient to establish a sincerely held religious belief in order to be exempt from a mandatory vaccination policy.”

Meanwhile, disability laws prohibit companies with 15 or more employees from firing an employee with a disability who refuses a vaccination, if they are prone to an adverse medical reaction, Dunn says. “In that situation, an employer must make a reasonable accommodation, such as allowing the employee to work remotely,” Dunn says.

Conn Maciel Carey elaborates that it’s incumbent on the employee to establish a covered disability. Notably, Conn Maciel Carey says, the courts are divided on what exactly constitutes a covered disability. For instance, the U.S. Courts of Appeals for the Eighth and Third Circuits reached opposite conclusions on the matter. “The Eighth Circuit held that alleged chemical sensitivities and allergies did not constitute a disability under the ADA (Americans With Disabilities Act), while the Third Circuit held that a history of allergies and anxiety related to the possible side effects of a vaccine qualified as an ADA-covered disability,” Conn Maciel Carey explains.

Employers have some grounds to deny an employee’s request to opt out of a mandatory vaccination program, if they can prove that letting the worker do so would cause “undue hardship,” Conn Maciel Carey notes. The firm shares that undue hardship analysis could include “harm to the employer, its employees, and third parties, such as patients or customers,” but further noted that “federal courts are split on whether speculative harm is sufficient to establish an undue hardship.”

Should an employer deny an employee’s request for exemption from a company-mandated vaccination requirement and terminate the worker because he or she refused to take it, a lawsuit could potentially follow.

“If the fired employee can prove they held a sincere religious belief against vaccinations, or if the employee had a disability such that a vaccination would put them at risk of an adverse reaction, then the employee could pursue a wrongful discharge claim,” Dunn explains.

Q: Should companies mandate that employees get inoculated against COVID-19?

A: Frankly, there’s not a simple answer. “Employers should weigh the employee relations concerns and potential legal challenges” associated with a mandate, Morgan Lewis says.

Some legal experts have pointed out that it might be prudent to hold off on company mandates, at least for a time.

Morgan Lewis suggests that employers should consider encouraging employees to get a COVID vaccination, rather than requiring them to take it, especially during the first few months that the shots are in circulation. “Employers could offer the vaccine at their worksites and pay for the vaccine, without requiring it,” Morgan Lewis attorneys say. “This would reduce the potential for legal challenges … as well as any potential backlash from ‘anti-vaxxers.’”

Additionally, Morgan Lewis notes that there are practical difficulties that employers should consider before mandating that employees get vaccinated, including the “supply of available vaccines, pay or time off for the time an employee spends getting vaccinated, reimbursement or coverage of any cost for the vaccine, and — for employers that ultimately choose to conduct vaccinations onsite (when there is sufficient supply for this to become an option) — proper storage of the vaccine, administration of the vaccine by appropriately licensed and trained individuals and physical side effects following vaccination.”

Q: What approaches are companies currently taking to COVID-19 vaccinations with regards to their employees?

A: According to Dunn, many employers that want to implement a vaccination policy are waiting until after a significant number of vaccinations occur to be sure vaccination is safe, effective and generally accepted by the public.

Rather than mandates, some employers are considering incentive payments aimed at encouraging employees to receive inoculations. “These employers would pay for the employees’ vaccinations and pay for the optional vaccination of employees’ family members,” Dunn explains.

When employers are ready to implement a vaccination policy, the policy should apply to all employees and should be consistently applied and enforced, except for the religious and disability exceptions, Dunn advises.

“If employers make exceptions for some categories of workers, like only requiring hourly workers to be vaccinated or assembly line workers to be vaccinated, then the employers run the risk of being accused of discrimination,” says Dunn.