January 4, 2021
The short answer: the law is unclear.
The longer answer involves two arguments, one that says no, employees cannot be required to receive the coronavirus vaccine and a converse argument that says employers can require vaccination.
Argument supporting mandatory vaccination:
According to Dorit Reiss, a law professor at the University of California, Hastings, who specializes in legal and policy issues related to vaccines, employers can likely require at-will employees receive the coronavirus vaccination, with exceptions. The exceptions will likely fall under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, requiring employers to make reasonable accommodations for those with medical or religious reasons to object to the vaccine. Reasonable accommodations may include things such as wearing a mask, working separately from others, or telecommuting.
Those in customer-facing businesses may have a stronger argument for mandating vaccination. The EEOC’s Pandemic Preparedness in the Workplace, updated in March 2020, will be helpful in guiding employers. Experts anticipate additional updates from the EEOC as the vaccine is rolled out. Employment law attorneys caution that while employers may be legally within their rights to require the vaccination, making vaccination mandatory may expose them to liability if an employee experiences complications from the vaccine.
Argument against mandatory vaccination:
The EEOC does not support requiring mandatory vaccines for viruses such as the seasonal flu, except for in the case of high-risk employees like health care workers. Even in the case of high-risk employment situations, the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 will prevent a universal mandate. However, past guidance such as the EEOC’s Pandemic Preparedness in Workplace report, advised against mandatory vaccination. The unique nature of the COVID-19 may change the recommendations. COVID-19 is more deadly than the flu and has been declared a direct threat to employee safety. The deadliness of the virus will be weighed against the employer’s ability to establish or continue accommodations for unvaccinated employees as will whether previous COVID-19 infection relieves the requirement for vaccination.
As the vaccination becomes available employers inside and outside the judicial system will be watching the EEOC and consulting with legal counsel. They will be deciding whether mandating a vaccination program for their employees is in the best interest of the organization, those who frequent it, and what is legally permissible and advisable.
For more reading on maintaining court operations in the midst of a pandemic please visit NCSC’s Pandemic Resource Guide.
For Information on this and other topics impacting state courts, contact Knowledge@ncsc.org or call 800-616-6164.