The short answer is YES – an employer can require employees to receive the COVID-19 vaccine as a condition to continued employment.  It is yet to be determined IF employers will make this requirement of their employees.

Should your employer require you to obtain the COVID-19 vaccine when it becomes available, you will need to comply, unless you have a qualified medical disability under the Americans with Disabilities Act or a religious reason under Title VII of the Civil Rights Act.

Employers have been provided guidance in how to implement the mandatory vaccination requirements through the Equal Employment Opportunity Commission (“EEOC”).  Per the EEOC, if an employee refuses to be vaccinated based on either a medical and/or religious reason, the employer cannot exclude the employee from the workplace or take other action, unless there is NO way to provide reasonable accommodations that would eliminate or reduce the risk so the unvaccinated employee would not pose a “direct threat” of exposing others to the virus in the workplace. 

Employers must conduct an individual assessment of the following to determine if a “direct threat” exists:

  • look at the duration of the risk;
  • the nature and severity of the potential harm;
  • the likelihood the potential harm will occur; and
  • the imminence of the potential harm.  If there is a direct threat that cannot be reduced to an acceptable level, the employer can then exclude the employee from physically entering the workplace but may not terminate the employee.

Additionally, employers may require an employee to show proof that they have received the required vaccination.  This would not be considered a “disability-related inquiry” by the EEOC. However, follow up questions such as “why” you have not been vaccinated may be disability-related if the reason is based on the employee’s disability. Best practices by employers is to warn their employees not to provide any additional medical information as part of their proof of vaccination. 

Employers should also make sure that their employees are aware of the facts about the various vaccines.  Employers should provide information to their employees from reputable authorities like the U.S. Center for Disease Control and Prevention, the World Health Organization and local health authorities.  Managers should listen to employee concerns about being vaccinated and provide the business justifications for the requirement, always leaning on the legal department and analysis for the requirement as well.

Will My Employer Be Required to Require the COVID-19 Vaccine?

Employers are required to provide a safe workplace for employees. There is some debate as to whether this means certain employers must require that all employees receive a vaccination and whether failure to do so can be used by an employee in an OSHA claim after contracting the virus.

In January President Biden issued an executive order directing the Secretary of Labor to issue OSHA guidance on COVID-19 workplace safety, including considering whether mask requirements should become an emergency temporary standard and to review OSHA enforcement efforts related to COVID-19. The guidance from OSHA did not discuss whether the government would require employers to require a COVID-19 vaccine as part of providing a safe workplace, it did recommend providing vaccinations to employees at no cost and to continue transmission mitigation protocols for ALL employees, even the vaccinated employees.

What is Next?

This last year has taught us is that nothing is definitive everything is fluid.  There is pending legislation in the State of Indiana that can greatly affect the any requirement by employers concerning vaccines.

            Indiana House Bill 1488, if passed, this law would: Prohibit an employer from requiring, as a condition of employment, an employee or prospective employee to receive an immunization that: (1) has been approved for emergency use; and (2) lacks full approval from the federal Food and Drug Administration (FDA).  Prohibits an employer from: (1) inquiring into; or (2) otherwise requiring an employee or prospective employee to disclose; the reason for refusing an immunization that: (A) has been approved for emergency use; and (B) lacks full approval from the FDA. Allows for a civil cause of action against an employer for specified violations.

            The importance of Indiana House Bill 1488 is that the COVID-19 vaccine is an “emergency use” vaccine.  If this bill becomes the law in Indiana, no Indiana employer could force an employee to obtain the vaccine and the employee does not have to assert a medical or religious reason to refuse the vaccine. 

Indiana Senate Bill 74, if passed, would provide for an additional exception to the vaccination requirement.  In its current form, Senate Bill 74 indicates that, and employee or prospective employee is not required to receive any immunization if the immunization is medically contraindicated for the individual, or if receiving the immunization is against the employee’s religious beliefs or conscience

The importance of Indiana Senate Bill 74, is that it prohibits any employer from forcing ANY vaccine on an employee, including flu shots, if it goes against a person’s conscience.  This bill allows for blanket refusal with no validation required giving the employee ultimate control over themselves.

For more information contact Layne Marino or Natalie Shrader at Burke Costanza & Carberry.

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