Can You Make Your Employees Get the COVID-19 Vaccine? It Can Be Complicated.

After months of sickness and shutdowns and social distancing, we finally have some hope on COVID-19, as multiple vaccines are showing promise in early clinical trials. With any luck, we may have a viable vaccine available in early 2021 and start moving closer to normal life. A potential vaccine has employers wondering whether they can require their employees to get vaccinated.

The short answer is probably yes. Generally, employment is at-will and employers can set whatever policies they want as long as they are legal and can fire employees who refuse to follow them. However, there are several caveats to consider. For example, some employees may have medical conditions or particular religious beliefs that make them unwilling or unable to be vaccinated. Employers generally have a duty to interact with such employees to determine whether they can find a way to accommodate their needs without unduly burdening the employer.  

Further, employees may be genuinely concerned about the vaccine’s safety, especially since scientists have moved the vaccine through the approval process more quickly than usual. Requiring employees to take actions they fear are unsafe could result in an unhappy workforce and even OSHA complaints (OSHA has not yet issued any guidance as to whether the COVID vaccine can be required). If your workforce is unionized, you will need to bargain with the union rather than unilaterally making a rule requiring vaccination.

Your best bet may be not requiring vaccination, but encouraging it and even making it available to employees in the workplace. This is the path many employers take with the flu vaccine. Many of your employees will want to be vaccinated and will appreciate you making it available to them. Those who are afraid regarding their safety may choose vaccination too, but may need a little more time before they are ready. Employees who are unable to take a vaccine due to a medical condition or a sincerely-held religious belief perhaps can be accommodated with socially-distant spaces to work and continued mask use. 

This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.

Barnes & Thornburg LLP is a large, full-service law firm that seeks to take a more entrepreneurial and cost-effective approach both to client service and its own business.

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