Every employer will face challenges over COVID-19 vaccinations

As COVID-19 vaccines become widely available, employers need to know what they may or can do with respect to employee vaccinations. For at-will employers in states without local limitations, a mandatory vaccination policy is permissible—so long as it clearly includes all required exceptions. As we’ll discuss below, however, the real question is what issues you should consider in drafting the policy.

Legal background

Federal law contains cautionary support for mandatory vaccination policies. The General Duties Clause in the Occupational Safety and Health Act requires employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm” to their employees.

OSHA. Because the Occupational Safety and Health Administration (OSHA) has refused to issue COVID-19-specific mandates, however, there is no federal requirement for vaccinations. President-elect Joe Biden isn’t likely to end the dilemma. Although he has announced OSHA will publish more detailed safety and health directives under his administration, it doesn’t appear mandated vaccinations will be part of those requirements.

EEOC. The Equal Employment Opportunity Commission (EEOC) gives some additional support. Basing its conclusions on the contemporary findings of the U.S. Centers for Disease Control and Prevention (CDC), the EEOC updated and reissued its 2009 Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.