As the first vials of vaccines are starting to be distributed, employers are asking whether they can or should require employees to take the COVID vaccine when it becomes available.

Phased Roll-Out

New York State is implementing a phased roll-out of vaccines in accordance with guidance from the Centers for Disease Control.  See the State’s plan here.

New York’s Phase 1 for high-risk health care workers is already underway, with the first dose of the Pfizer vaccine administered to a nurse in Queens on December 14.  Priority will be given to healthcare workers in intensive care units, emergency units, and those providing emergency services.  Vaccinations will then begin in nursing homes, first to long-term care facility workers and then long-term care facility patients.

In Phase 2 vaccines will be given to first responders (fire, police, national guard), teachers and school staff, other essential front line workers (pharmacists, grocery store workers, transit employees, etc.), and individuals who are high risk due to pre-existing conditions.

Phase 3 will see vaccines provided to those over 65.

Phase 4 is for all other essential workers.

And Phase 5 is for all other healthy adults and children.

The State’s phases could potentially be superseded by new federal guidelines or updated data on vaccine side effects.

No State or Federal Requirement to Mandate Vaccine, But That Could Change

As of now, no state or federal government agency would require employees to take the COVID vaccine. This could change on a state or federal level as new laws or regulations are issued.

Do You Want to Make the Vaccine Mandatory for Employees?

At this time there is no law, regulation or other guidance in New York State or federally that would prevent employers from requiring employees take the vaccine as a general policy.

The U .S. Equal Employment Opportunity Commission (“EEOC”) issued guidance on December 16, 2020  indicating that employers will be allowed to make vaccinations mandatory once they become available, with some exceptions.   This is in line with prior guidance from the EEOC stating employers may require workers to take COVID-19 tests (to determine the presence of the COVID-19 virus) , may take  employees’ temperatures before allowing them in the workplace, and may require workers who have symptoms of COVID-19 or who test positive to leave the workplace.

Also, in the past the EEOC and the Occupational Safety and Health Administration (“OSHA”) have issued guidance allowing employers to require vaccines during prior pandemics, such as smallpox and the H1N1 swine flu.

The standard under the Americans With Disabilities Act is that employers may make medical inquiries and administer medical tests if they are “job related and consistent with business necessity.” Many employers arguably will meet this requirement if they choose to require vaccination.

Can an Employer Fire an Employee Who Refuses to Get Vaccinated?

Generally, the answer is yes, with a few exceptions.

Employers are required to provide reasonable accommodations to people with disabilities that prevent them from receiving a vaccine under both the Americans With Disabilities Act and the New York Human Rights Law.

A minor allergic reaction to a vaccine usually is not considered a disability that entitles the employee to an accommodation at work.  The Southern District of New York recently ruled that minor side effects experienced by an employee when taking the flu vaccine did not constitute a disability within the meaning of state or federal law, and did not excuse the employee from the requirement to take the flu vaccine as a condition of her employment.  Norman v. NYU Langone Health System, No. 19 Civ. 67, 2020 WL 5819504 (SDNY Sept 30, 2020) (pending appeal).

The EEOC has issued guidance stating that if an employer has a mandatory vaccine policy and an employee indicates he or she is not able to receive a COVID-19 vaccination due to an actual disability, the employer must try to accommodate the employee’s disability prior to terminating their employment.

Employees may also qualify for an accommodation for sincerely held religious beliefs or practices.

An accommodation in these instances could include allowing the employee to work remotely, mask wearing, or certain shift schedules.

An employer may not be required to provide an accommodation if it would cause extreme hardship to the employer.

If there is no reasonable accommodation possible to an employee with a disability or religious belief precluding vaccination, then the employer may generally consider termination of the employee.  In other words, if an employee with a disability cannot take the vaccine but can work remotely, the employer is required to allow him or her to work remotely.

Can an Employer Require Job Applicants to be Vaccinated?

The answer is probably yes.  The EEOC’s guidance states that an employer may screen job applicants for symptoms of Covid-19, and take an applicant’s temperature, after making a conditional job offer, as long as the employer tests all new employees in the same type of job.  It is anticipated the EEOC’s guidance with respect to vaccines will be similar.

Should My Company Enact a Vaccination Policy Now?

It is probably premature to enact a formal employment policy right now that would require employees to take the COVID vaccine. State and federal agencies may provide additional guidance on whether an employer may mandate vaccination, or which industries should consider mandatory policies.

Some in New York State are calling for mandatory vaccination by all people who are medically able to take the vaccine.  A bill is pending in the New York State Assembly has would require most New York residents to get vaccinated, irrespective of their employers’ workplace policies.

The New York State Bar Association is recommending that the state consider mandating a COVID-19 vaccine, except for those exempted by doctors, in the event that insufficient numbers of New Yorkers take the vaccine on a voluntary basis.

At this point while state and federal regulations remain pending, depending on the industry, employers may want to institute a policy of recommending a vaccine rather than mandating it.

Stacey E. Trien is a partner with the law firm of Adams Leclair LLP.  She focuses her practice on employment law and commercial litigation.  She can be reached at strien(Replace this parenthesis with the @ sign)adamsleclair.law.