With the coronavirus vaccine on the horizon, lots of employers in Massachusetts are left wondering if they can require their employees to get vaccinated as a condition for continued employment.
Unfortunately, there is still some uncertainty on this issue.
There Is No Law, Yet
As of this writing, there is no law or regulation that expressly allows or forbids employers from requiring their employees get vaccinated for COVID-19. The laws that are the closest to being relevant are the Americans With Disabilities Act, or ADA, and Title VII of the Civil Rights Act. But even those federal laws merely entitle employees to a reasonable accommodation from a vaccination requirement if they had a covered disability or if the shot would violate their sincerely held religious beliefs.
The legal void, however, is likely to change in the near future. The Equal Employment Opportunity Commission (EEOC) is reported to be actively considering a regulation on the issue.
Why the Flu Vaccine is an Imperfect Analogy
Some employers, especially those in the healthcare field, are presuming that their requirements that their employees get vaccinated for the flu every year will cover the coronavirus vaccine, as well.
At this point, that analogy only goes so far, though.
When they first become available, the coronavirus vaccines are only going to have an emergency use authorization. This is not the full FDA licensure that covers the flu vaccines. Because the coronavirus vaccine is, to some extent, still experimental, extending flu vaccine requirements to the COVID shot could lead to a lawsuit where the plaintiffs have a valid argument to make.
Partial Requirements Could Lead to Discrimination Claims
The potential controversy of requiring a coronavirus shot, coupled with the foreseeably short supply of the vaccine, will probably push employers toward the idea of only requiring some of their workers to get vaccinated. But only mandating the vaccine for workers who, for example, interact with the public could easily lead to claims of discrimination. Those claims could be minimized by not penalizing anyone who does not comply with the vaccine mandate, but then the requirement would become largely symbolic and meaningless.
Another Option: Incentivizing the Vaccine
Rather than requiring workers get the coronavirus vaccine, employers might want to consider another option: Recommending or actually incentivizing it.
There will always be contrarians and anti-vaxxers who will refuse to get the shot. Mandating that they get one, and penalizing them if they refuse, would be an infringement that they would challenge. Merely incentivizing the vaccine, on the other hand, strips them of the ability to complain about an injury or claim that they are being mistreated.
The costs of the incentive, meanwhile, could be made back in the future as workers take the incentive, get vaccinated, miss less time at work, and reduce the chances of a coronavirus outbreak that could seriously taint the company's reputation.
Massachusetts Employment Litigation Lawyers at the Katz Law Group
In the coming months, businesses in Marlborough, Framingham, Worcester, and the rest of Massachusetts will have to walk a fine line between maintaining safe workplaces in the coronavirus era, not discriminating against their workers, and protecting their bottom line.