Can the COVID-19 Vaccine be Mandated in the Workplace? It’s complicated.
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. January 21, 2021
The beginning of 2021 has brought the first doses of the Covid-19 vaccine to the American public. By the end of the first quarter, a large portion of Americans will likely be immunized against the virus. This would be a significant leap forward for many companies that have not been able to operate normally for almost a year. Will the vaccine fast-track a return to normal?
While there are advantages to having a vaccinated workforce, it will also create new obstacles for employers. A mandatory vaccine policy may be tempting to some companies, but requiring inoculation among employees will also open the door to potential lawsuits.
Legitimate Business requirement
Employers can mandate vaccinations if there is a legitimate business requirement for doing so. This means that receiving the vaccine must be integral to an employee performing their job. For example, there is an obvious requirement for healthcare workers who regularly come into contact with sick and vulnerable patients.
Outside of healthcare, situations can be a bit more difficult for employers to require vaccinations. The goal of simply having a healthy workforce is likely an inadequate justification for a company-wide vaccine mandate. The reality is that Florida law does not necessarily contemplate a global pandemic and a deadly, highly-contagious virus – leaving room for interpretation.
While healthcare businesses may be able to prove that a required Covid-19 vaccination is a legitimate business requirement, many sectors fall into grey areas. For example, for employers whose employees interact directly with customers on a daily basis, such as restaurant or retail workers, an argument can be made that a vaccination is the only way to safely perform the employees’ job duties. This might not have been an option prior to Covid-19, but we could see this as a legitimate reason moving forward. Another possibility is that businesses will strive to market themselves as ‘Covid-free,’ meaning all employees have been immunized. If this happens, mandatory vaccines could become a legitimate requirement to stay in business.
Public mistrust could prove to be an obstacle to employee immunization. So, what happens if employees refuse to be vaccinated? In the early days of the vaccine rollout, some rare incidents of severe allergic reactions have been reported. If a company decides to mandate the vaccine but an employee is able to prove that he or she is at risk for one of these severe symptoms, that employee may be protected by the Americans with Disabilities Act. In such case, an employer might have to make a reasonable accommodation to allow the employee to continue to work without a vaccine, such as continuing to work from home if possible. Failing to make an accommodation could make the employer vulnerable to potential lawsuits from an employee.
Businesses that have successfully operated remotely must continue to weigh additional considerations. First, some employers may continue to operate remotely or semi-remotely, which could save on office space and other costs. However, this will not be the best course for every company and returning to the office will be the only option for some. Some employees may argue that they would rather continue to work remotely rather than to be vaccinated and return to in-person work. Employers will face certain obstacles to bringing employees back to work in the office, especially if these employees have been able to perform their jobs remotely. The burden may fall on employers to prove that in-person work is a necessary part of their businesses.
As these issues continue to develop, companies should begin to carefully consider how best to approach the return to work options in light of the changing work environment.