Is a COVID-19 Mandatory Vaccine in Your Company’s Future? Considerations at the Start of Flu Season

Each year we review the validity of mandatory flu vaccinations. It is usually in the context of health care organizations, as few other employers have had the same need. In the last few years, the analysis has remained the same: (1) what is the justification (often, employee and patient safety); (2) will there be medical and/or religious exemptions; and, if so, (3) what is the accommodation (it has generally been wearing a mask all times at work).

Over the last few years, we have seen the U.S. Equal Employment Opportunity Commission (EEOC) push back both on the mandatory nature of requiring the flu vaccine and requiring wearing a mask as an accommodation.

So then comes the horrendous pandemic year of 2020 and the question of a mandatory flu vaccine may be far more important. There is a concern that a combined bad flu season on top of the continuing COVID-19 pandemic may overwhelm the U.S. health care system. The U.S. Centers for Disease Control and Prevention (CDC) is urging people to get the flu vaccine and many more employers are looking at whether to make it mandatory. Employers often offer the flu vaccine at their worksites on a voluntary basis. Now, with many employees working remotely, the logistics have changed. Even so, many pharmacies are offering flu shots free to individuals who have insurance. A well-designed robust educational campaign might encourage employees who do not wish to come into the workplace to stop by their neighborhood pharmacy instead. The time is tight, however, as health professionals are encouraging people to get the flu vaccine by late September or early October 2020.

Here is what employers that want to require flu vaccinations may need to consider. Although many jump ahead to the exemptions, the true starting point is determining the company’s justification for making the vaccine mandatory. Why is it necessary for the workplace and for whom is it necessary? Does the same justification apply to all employees or only employees in specific areas? Employers may next want to determine if a vaccination program is something the company can unilaterally put into place or if there is any vehicle, such as a collective bargaining agreement, that requires bargaining over a mandatory requirement. This is the one main area where courts have curbed an employer’s ability to require unilaterally mandatory vaccinations.

Employers that determine that they can support a decision to require a mandatory vaccination may then want to consider the issue of whether to allow exemptions. The EEOC’s starting position has been that employers may not require a blanket vaccination program without considering employees’ medical conditions and religious beliefs. Employers also may wish to note that a number of states have expanded exemptions to include a “philosophical exemption” for those employees who object because of personal, moral, or other beliefs. Employers may find it useful to have policies and procedures to address the requests for exemptions and appropriate accommodations. Companies may wish to use a declination form for those who decline the vaccine and forms for specific exemptions, as well as a process for individually considering those requests. Many requests to decline the vaccine have been brought under the guise of religious objections. Employers may want to be prepared and have a plan prior to employees raising the issues.

Of course, these issues bring the looming question of mandatory COVID-19 vaccinations to the fore. The legal considerations will be the same. However, the medical community does not know all the issues that may result from the make-up of the vaccine. There are already concerns, justified or not, about vaccines being rushed and their potential safety and efficacy. People who are normally supportive of vaccinations are voicing concerns about a first-round COVID-19 vaccination. As a result, employers that mandate COVID-19 vaccinations may find an even greater education effort is necessary to explain to their employees why they are requiring the vaccine. We can only hope that the CDC will supply data and support for employers who choose this route.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar programs.