Employment & Labor Insider

Two new COVID-19 vaccines are hurtling toward approval by the Food and Drug Administration and release to the public.

As a result, employers are asking whether they can require their employees to get the vaccine (once generally available) as a condition of coming to work.

We don't have specific guidance yet, but here is my educated guess as to what the answer will be:

*Yes. Because of the public health crisis caused by COVID-19, all employers (not just health care employers) will be able to require employees to be vaccinated before they can return to the non-virtual workplace.

*However, employers will be required to make exceptions in some cases. If an employee has a medical condition that could be aggravated by the vaccine, or a sincere religious objection to receiving the vaccine, the employer should consider reasonable accommodation. Depending on the employee's job, that could include letting the employee work in a more isolated spot onsite, or letting the employee work onsite while taking extra precautions, or moving the employee from a customer-facing role to one that has limited or no contact with the public. (There may be other options, as well.)

*If an employee has a legitimate reason for not being vaccinated but is in a position that can be performed remotely, the employer should let the employee continue working remotely. Remote work can be a form of reasonable accommodation.

*Presumably, employers with unions would be required to bargain before imposing a vaccination requirement unless the requirement would fall within a management rights clause. 

*Requiring employees to be vaccinated (with exceptions for reasonable accommodation situations) may lessen employers' potential liability for workplace safety complaints or workers' compensation claims related to COVID-19.

Again, the above are just my guesses. And if an employer prefers a lighter approach, there should be no problem with urging employees to be vaccinated but not requiring it.