In a word, yes. Employers can make vaccination a requirement to employment or continued employment. But there are a number of exceptions related to disability and religious beliefs that prohibit vaccinations. In all likelihood, employers are more likely to strongly encourage their employees to be vaccinated rather than requiring it.
Employers can provide standards for health and safety conditions with some limits. Those restrictions come from the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. Under the ADA, workers who do not want to be vaccinated for medical reasons may request an exemption. In those cases, the employer must provide a reasonable accommodation. Other employees may have a “sincerely held” religious belief that exempts them from being vaccinated. Under Title VII, which protects employees against religious discrimination – among other things – an employee must have a “sincerely held religious belief” against vaccination before the employer must provide an accommodation or exemption from being vaccinated. A sincerely held non-religious opposition to vaccination, however, lacks legal sufficiency to result in an exemption. The employee must establish that her objection to vaccination is based on a religious belief. Earlier this year, a federal court in Philadelphia addressed a wrongful termination claim by an employee who held a sincere opposition to vaccinations. In Brown v. Children’s Hosp. of Phila.,794 Fed Appx. 226 (3d Cir. 2020) the Court of Appeals held that “it is not sufficient merely to hold a ‘sincere opposition to vaccination.’” The employee must establish that “the opposition to vaccination is a religious belief.”
For employees with a medical reason or “sincerely held” religious beliefs that prevent them from being vaccinated, employers could be required to provide those employees with a reasonable alternative in order to continue working. Reasonable alternatives may include wearing a mask, working from home, or working apart from others.
Another consideration for employers involves potential liability issues that a vaccination requirement may raise. For example, if a COVID-19 vaccination causes side effects to an employee, has the employer just created a workers’ compensation for its employee and itself?
While COVID-19 vaccines offer hope for a return to pre-pandemic normalcy, they should not be viewed as a “magic bullet.” According to Carlos del Rio, an infectious-disease expert at Emory University involved in Moderna’s coronavirus vaccine trials, masking and social distancing will still be necessary for some period of time until 60% to 70% of the population has been immunized or develop antibodies from the virus. So while employers can require vaccination against COVID-19, a less rigid, more flexible path stressing the importance of vaccination for employee health and safety is more likely.
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