COVID-19 Vaccination Requirements: Potential Constraints on Employer Mandates Under Federal Law

"The COVID-19 pandemic has forced unprecedented workplace changes and raised a host of legal issues. Employers may struggle with how to protect workers from infection, avoid disruptions that may result from sick leave and employee quarantines, and manage potential liability if an employee contracts the virus at work. Some have noted employers’ plans to encourage or require COVID-19 vaccinations for workers as they become available. Policies will undoubtedly vary. Observers expect that health care, travel, and retail businesses will more likely mandate or encourage vaccines, while those with less customer interaction and more work-at-home capacity may defer to employee choice on whether to seek vaccination. Some expect that smaller businesses, too, may be more likely to require vaccination, because a wave of infection among a smaller staff could shut down operations. In accordance with guidance from the Centers for Disease Control and Prevention (CDC), many health care providers already mandateannual flu vaccination, providing an informative precedent for COVID-19 vaccination policies.

Whatever approach vaccination-policy decisionmakers consider, federal antidiscrimination statutes, among other laws, may inform, and perhaps constrain, the implementation of vaccination mandates. Federal civil rights laws do not bar vaccination mandates by private and state government employers, but they may affect their scope. Some laws, for example, restrict employers from making certain medical examinations or inquiries, while others require employers to consider workers’ religious objections to vaccination and potential disabilities preventing vaccination. The coronavirus pandemic is unique and, thus far, courts have not evaluated vaccination requirements in this context. But the Equal Employment Opportunity Commission (EEOC), which enforces these federal civil rights laws in employment, has issued guidance on COVID-19 and vaccination policies. In addition, an underlying principle of many employment anti discrimination laws that call for accommodation is reasonableness. Concerns about employees spreading COVID-19 will likely weigh heavily in any challenge to a vaccine mandate..."
COVID-19 and vaccine