Can Employers Legally Mandate The COVID Vaccine To Return To Work?
With COVID-19 vaccinations underway and widespread availability in sight, many employers want to know whether they can require their employees to get the vaccine.
While recent Equal Employment Opportunity Commission (EEOC) guidance implies that employers can require a vaccine, bills have been introduced in more than 20 states to prevent employment discrimination against those who refuse a vaccine. Additionally, we anticipate that there will be numerous vaccine-related lawsuits from individuals, regardless of state law. While individuals may not succeed in suing their employers, even the opening salvo to litigation is extremely expensive. Employers who are considering mandating vaccinations should be certain that the cost-benefit analysis works out in favor of mandating.
Employers should also consider that many employees will not be keen on the idea of mandatory vaccination, and they will have the right to get together and complain about it - even publicly - due to the protections offered by Section 7 of the National Labor Relations Act. So in addition to the threat of litigation, employers should factor in the likelihood of workplace disruption and potential PR problems.
Given the legal and financial risks, and since many Americans will not have access to a vaccine until spring or even summer, we believe it will be prudent for most employers to wait to see how things play out in courts and legislatures across the country before deciding to require vaccinations.