Mandatory COVID-19 vaccines?

| | January 25, 2021

Mandatory COVID-19 vaccines?

With COVID-19 vaccines finally becoming available throughout the country, many allergy practices are wondering whether they can require employees to receive the vaccine to protect the health and safety of other employees and patients in their practice. As explained below, the general answer to this question is “yes,” but with exceptions.

A related question is whether health care employers can bar an employee from the workplace — or even terminate an employee — if the employee has a legitimate reason for not taking the COVID-19 vaccine. This is a more complicated question and involves the interplay of several federal laws including the Americans With Disabilities Act (ADA) and federal civil rights laws, as well as parallel state laws.

blued-gloved hand giving person injection in arm

In general, courts that have considered the issue have ruled employers have the right to mandate vaccination as a condition of continued employment if vaccination is necessary to protect the safety of others and does not violate other laws. Many hospitals and health care systems have mandatory vaccination policies, and the COVID-19 vaccine is merely the next phase in a long history of public and employer vaccination programs. However, with so many people reluctant to receive the COVID-19 vaccine, health care employers are undoubtedly going to find many employees resistant to any policy mandating it.

The federal Equal Employment Opportunity Commission (EEOC) has issued new guidance stating that a health care employer with a valid job-related reason can require an employee to receive a COVID-19 vaccine as a condition of being at the workplace, with two major exceptions: 1) a qualified medical disability under the ADA that would make receiving the vaccine unsafe; or 2) sincerely-held religious objections to vaccination.

An individual with a qualified medical disability who, because of that disability, should not receive the COVID-19 vaccine, must be given reasonable accommodation. This could require allowing the employee to work at another location where they will not present a risk to other individuals. If such reasonable accommodation would constitute an undue hardship for the employer or would make it impossible for the employee to perform his/her duties (e.g., a front-line health care worker) then the employer may have grounds for terminating the employee. However, before doing so, the employer must conduct an individualized assessment under the ADA evaluating the risk such individual could pose to others.

With regard to religious exceptions, again, the employer is expected to provide a reasonable accommodation unless doing so poses an undue hardship. The accommodation analysis under a religious objection is similar to that required by the ADA.

We polled the Practice Management Committee to ask whether they plan to require the COVID-19 vaccine for their employees. Eleven committee members weighed in, and none of the eleven said they or their health system were currently requiring the vaccine. Several respondents said interest in getting the vaccine was high among their employees, and most, if not all, staff had been vaccinated or were eager to get a vaccine. Others reported some vaccine hesitancy among staff. Most respondents clarified that they have strongly recommended their staff be vaccinated. “We are encouraging COVID-19 vaccination but not requiring it, as it is very difficult to enforce. Our hospital is not requiring vaccination, either. Some employees want to wait to see more experience with the vaccine before getting vaccinated,” said Kevin McGrath, MD, FACAAI, chair of the Practice Management Committee.

“I met with all my staff to discuss the vaccine. I stated ‘my expectation is that everyone gets the vaccine’ and I gave an overview of the currently available vaccines, risks, and common questions/misconceptions. I asked that any employee who is not comfortable getting it come talk to me personally and we discussed one on one, in private. The vast majority of our employees have been vaccinated,” said Melinda Rathkopf, MD, FACAAI, vice-chair of the Practice Management Committee.

“We decided not to require getting the COVID vaccine, in part because it has not been easy to get staff scheduled for vaccinations. But we said if they have the opportunity to get vaccinated and decline to get it, and if they then contract COVID-19, they will not be eligible for COVID paid time off and will have to use their personal time off,” said Alnoor Malick, MD, FACAAI, member of the Practice Management Committee.

The science related to COVID-19 vaccination, and in particular the extent to which a vaccinated individual may or may not be able to transmit the virus to someone else, is still evolving. For that reason, employers should frequently re-evaluate vaccination policies to make sure they reflect current scientific knowledge.

For more information about the COVID-19 vaccine, visit the College’s COVID-19 resource page, where you’ll find College FAQs, our recent COVID-19 vaccine webinar, ACAAI guidance on allergic reactions to mRNA vaccines, a comparison of available vaccines, and more.