Various states have implemented vaccine allocation guidance, and early prioritization is generally focused on: high-risk workers in the health care setting, high-risk first responders, and residents and employees of assisted living facilities. Incremental rollout of vaccines from various manufacturers also means that it will not be possible for all employees to get vaccinated at the same time, or even within weeks or months of one another. One such concern is that the vaccine is currently available to only a small segment of the American population. Practical implications of implementing such a policy should also be considered. For example, Oregon prohibits some employers from making immunization a condition of employment unless another law affirmatively requires it. The risks of labor activity such as strikes or work stoppages around implementing a vaccination program (whether that is requiring vaccinations or affirmatively choosing not to) should also be considered.Īdditionally, states have varying standards for whether vaccines can be mandated, and these standards are often more restrictive than federal law. That is not, however, the end of the analysis.Įmployers with collective bargaining agreements may have to navigate the National Labor Relations Act and existing contractual obligations before rolling out such a program. According to the EEOC, nothing in the ADA or Title VII of the Civil Rights Act precludes employers from conditioning employment on an employee's provision of proof of receipt of the COVID-19 vaccine. Possibly, depending upon location, workplace and industry. Can Employers Require Employees to Get Inoculated Against COVID-19 as a Condition of Employment? Each employer should review these same questions under state and local law as standards may differ from that provided at the federal level. This advisory is intended to assist employers in evaluating these competing concerns by summarizing key points from the EEOC's guidance and by identifying additional issues for employers to consider when formulating policies concerning COVID-19 vaccines. While the EEOC's guidance answers some questions, the broader message is that it is not that simple, and many employers will opt to adopt incentive-based vaccination programs instead of mandatory ones based on their own individualized assessment of competing factors. On December 16, 2020, the EEOC issued its much-anticipated guidance on the application of federal anti-discrimination laws to issues concerning the availability of COVID-19 vaccines. As the first doses of vaccines are being administered, many employers, cognizant of the public health imperatives and a desire to promote the health of their employees in a manner compliant with applicable law, are wondering whether they can or should make vaccination a required condition of employment.
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