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How Limiting Are the Limitations on Mandatory Employer Vaccination?
USA
December 22 2020
This week, the EEOC approved employers requiring employees to receive COVID-19 vaccination, subject to limitations. How limiting are the limitations? Case law applying them is thin, but generally treats them as narrow. In fact, an argument is taking shape that employers actually have a duty to require the vaccination of certain employees. Constitutional and additional statutory limitations arise if government mandates the vaccination and when government is the employer. Requiring proof of vaccination is preferable to private employers themselves vaccinating, although employers that vaccinate may be entitled to take advantage of state and PREP Act immunities.
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With coronavirus vaccines receiving their emergency use authorizations from the FDA and being rapidly rolled out, employers will need to evaluate a mandatory vaccination policy that balances employee rights with novel business realities and pre-existing legal frameworks lacking clear guidance in the face of COVID-19.
Under existing federal law and regulations, employers may be able to institute mandatory vaccination policies to protect health and safety in the workplace. Although a mandatory vaccine policy is not completely free from legal risk, courts more recently have upheld vaccination requirements when an employer shows that the need for vaccine-acquired immunity is job-related, consistent with business necessity, and not more intrusive than necessary.[1] Other constitutional challenges to the vaccine may occur, but such challenges could be influenced significantly by government and public sentiment likely to affect
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After a seemingless endless wait, news of COVID vaccine distribution has business owners, government offices and school district administrators faced with a legal question they could not have foreseen at the beginning of 2020. Can we require employees to get a vaccine? The short answer is yes, but there are some exceptions to note, and potential pitfalls to avoid in dealing with employees who refuse a vaccine.
An employer can require employees get a vaccine, subject to religious exemptions (Title VII), and disability exemptions (ADA). At-will employees, who do not fit within Title VII or disability exemptions, can be fired for refusing to get a vaccine. The EEOC provides some guidance for employers to properly address exempt employees. Addressing the issue of flu shots, the EEOC has said:
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