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COVID-19 Vaccinations and Legal Considerations for Employers

March 12, 2021

With nearly 34 million people, or more than one in 10 Americans, fully vaccinated against COVID-19, most employers can expect vaccination to soon become available to their general workforce. Besides being eager to return to some semblance of “business as usual,” employers may want employees to get COVID-19 vaccinations for workplace morale and safety reasons. It is important for employers to start considering what their vaccination policies will be and how to implement them not only to suit their business needs but also to be legally compliant. In so doing, employers need to take into consideration the rights, responsibilities, and risks associated with employee vaccinations.  

Workplace Safety

The Occupational Safety and Health Act 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. On January 29, 2021, the Occupational Safety and Health Administration (OSHA) updated its guidance entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, explaining how vaccines fit into an effective workplace COVID-19 prevention program. OSHA recommends that employers include the following elements in their plans:

Anti-Discrimination Laws

Employers considering implementing COVID-19 vaccination policies 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 address how 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

Employers must also ensure that their policies and practices regarding employee vaccination comply with state anti-discrimination law.

Other Legal Issues

Other legal considerations concerning employee vaccination exist outside the discrimination context, including but not limited to:

CDC Recommendations for Fully Vaccinated People

Employers should consider and continue to monitor guidance developed by the CDC and local health authorities in developing workplace vaccination policies. On March 8, 2021, the CDC issued Interim Public Health Recommendation for Fully Vaccinated People.  The guidance provides that fully vaccinated people can start visiting other fully vaccinated people or unvaccinated people from a single household with low risk for severe COVID-19 disease indoors without wearing masks or social distancing. Additionally, the guidance recommends some quarantine requirements that are more relaxed for fully vaccinated individuals. Particularly, fully vaccinated employees of non-healthcare congregate settings and other high-density workplaces do not need to quarantine following an exposure if asymptomatic (but testing is still recommended). The CDC, however, continues to recommend fully vaccinated people, among other things, to take precautions such as mask-wearing and social distancing and follow guidance issued by individual employers.

If you have questions about legal considerations for implementing COVID-19 vaccination policies in the workplace, please contact your Miller Canfield attorney or the authors of this alert.

This information is based on the facts and guidance available at the time of publication and may change.