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COVID-19 Vaccinations: Legal Considerations for Employers

December 17, 2020

With the recent approval for emergency usage of the COVID-19 vaccine in the United States, employers may consider mandating or administering COVID-19 vaccinations when they become available for workplace safety reasons or perhaps just to return to some semblance of "business as usual." Whether employers can or should require the vaccination will depend on several factors.

The Occupational Safety and Health Act (OSHA) commands employers to ensure that the workplace is "free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees." This "general duty clause" may impose a duty on employers to take steps to prevent employees from contracting or spreading COVID-19 in the workplace. While it has not yet issued any guidance concerning COVID-19 vaccination, the Occupational Safety and Health Administration has published guidance recommending that employers promote vaccination and make vaccines readily accessible to employees to prevent the spread of the flu virus in the workplace. However, the Administration has not mandated vaccines at this point.

Employers considering implementing mandatory COVID-19 vaccination policies should keep in mind several legal issues associated with such a mandate. First, employers must be cognizant of their obligations under federal and state anti-discrimination laws. On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws to include new information addressing how the COVID-19 vaccination interacts with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII), and the Genetic Information Nondiscrimination Act (GINA). The updated guidance applies previous EEOC Guidance to several COVID-19-specific issues:

Medical Examinations and Inquiries

Direct Threat/Reasonable Accommodation Analysis Under the ADA

Religious Objections to Vaccination

GINA Considerations

There are other legal issues outside the discrimination context, which employers should take into consideration before mandating or administering COVID-19 vaccinations in the workplace:

If you have questions about legal considerations for mandating or administering COVID-19 vaccinations in the workplace, please contact your Miller Canfield attorney or any of the authors of this alert.