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With the development of vaccines determined effective against COVID-19, both employers and employees are asking one question: should – and could – the vaccine be mandatory for employees? The short answer is yes, you could require employees to be vaccinated to return to work. However, should you require them to get a shot is a different calculus entirely.

There is much recent written guidance suggesting that the employer can require employees to be vaccinated. However, employers who require the vaccine must also ensure they are compliant with federal and state workplace laws, such as the Americans with Disabilities Act (ADA), which protects employees with disabilities who may be vulnerable to the vaccine’s side effects, and Title VII of the Civil Rights Act of 1964 (Title VII), which protects any employees with sincerely held religious beliefs that prevent the employee from receiving the vaccination. Considerations for employers who mandate the vaccine include:

  • The potential legal issues that could ensue when the requirement is enforced in the workplace, such as wrongful termination suits;
  • The requirement to consider whether a reasonable accommodation can be made for the qualifying employees who pose a direct threat to the workplace if they don’t obtain a vaccine, such as allowing the employee to work remotely or take a leave of absence; and
  • The potential liability for an employee’s injury resulting from a mandatory vaccine, which could be considered a workplace injury under state worker’s compensation laws.

Because of these considerations, many businesses may opt to encourage employees to be immunized rather than implement company-wide mandatory vaccination programs. Many employers may opt to encourage their workers to obtain the COVID-19 vaccine, including by offering the following: make the vaccine readily available to the employees, cover the cost of the vaccine, provide workplace incentives to those who receive the vaccine, and pay for time off to obtain the vaccine.

Employers who choose not to require employee vaccinations separately may find themselves liable to customers or vendors exposed to COVID-19 at a business that could have been prevented by a vaccination program. Depending on the business and the nature of the public interaction, a vaccination program may be advisable.

What is clear is employers, like snow and ice management contractors, need to strike the proper balance when assessing the competing objectives of protecting employees’ rights under the ADA and Title VII, limiting their own exposure to legal liability, and protecting employees and customers from the COVID-19 virus. Employers who do choose to adopt mandatory vaccination policies and then face requests from individuals for accommodation or exemption are strongly advised to consult with legal counsel.

Courtney Mazzio is an attorney practicing in the Philadelphia and Cherry Hill offices of Freeman, Mathis and Gary LLP. She handles a wide array of complex litigation matters with a particular focus on employment, professional liability, commercial litigation and data privacy and cyber claims. If you have any questions, or would like more information, please contact Courtney Mazzio at cmazzio@fmglaw.com.