Can Your Employer Require You To Receive A COVID-19 Vaccine When It’s Released?

Date: October 29, 2020
Posted In: In The Community | Press

If and when a coronavirus vaccine hits the market, Pennsylvania businesses better be ready with a plan for employees

At some time in the near future, a coronavirus vaccine will be approved by the FDA. There is no doubt that everyone is ready for an end to the COVID-19 pandemic. However, will everyone agree to be vaccinated? Probably not. Some people don’t believe vaccines work. Other people believe that vaccines cause other health problems more serious than the disease the vaccine is designed to prevent. Still others object to vaccines based upon their religious beliefs. When it comes to a vaccine for the coronavirus, even people who generally have faith in vaccines may not be comfortable receiving the vaccine because they may believe the testing to verify the safety and efficacy of drug was rushed.

Depending on how many people refuse to be vaccinated and how long it takes to make the vaccine widely available to the public, the coronavirus may be around for much of next year (2021). That said, a question many employers will soon need answered is whether they can compel their employees to be vaccinated for COVID-19. At present, the answer to this question is not entirely clear. However, the Equal Employment Opportunity Commission (EEOC) has published guidelines for other approved vaccines. Although the EEOC may supplement these guidelines for the coronavirus, the existing guidelines provide us some instruction regarding this issue.

An employer is clearly authorized to implement policies and requirements that it believes are necessary to keep its workplace safe. However, any requirement that an employee be vaccinated as a condition of employment may be challenged (1) on religious grounds pursuant to Title VII of the Civil Rights Act of 1964, and/or (2) under the Americans with Disabilities Act (ADA) if an employee is disabled and the granting of a reasonable accommodation to the employee would not result in undue hardship to the employer. Reasonable accommodations to an employee may include mandatory mask use, reassignment to a different position (physically distant from customers, patients and/or co-workers) and/or work from home if the employee’s job does not otherwise require the employee’s physical presence at the employer’s facility. However, if an individual poses a “direct threat” despite reasonable accommodations, he is not protected by the nondiscrimination provisions of the Title VII or the ADA.

Another issue may arise if an employee who receives a COVID-19 vaccine due to an employer mandate has an adverse reaction to the vaccine. Under those circumstances, the employer is potentially liable to the employee for workers’ compensation benefits. See Colagreco v. W.C.A.B. (Vanguard Group, Inc.), 232 A.3d 971 (Pa.Commw. 2020) (employee awarded workers’ compensation benefits after her arm became “almost paralyzed” within a day or two of receiving a flu shot at work mandated by her employer). Similar to any other workers’ compensation injury, an employer’s liability to an employee who develops a health condition as a result of receiving a COVID-19 vaccination includes responsibility for the payment of the employee’s related medical expenses and lost wages.

If you have any questions regarding your employment rights, including those relating to an injury and/or medical condition caused by your work activities, you should contact one of the attorneys at DLP for a free, no-obligation consultation. Your future may depend on it. Remember: Injury? Call DLP! (570) C-A-L-L-D-L-P.

John Finnerty
Attorney Finnerty has been representing clients in Northeastern Pennsylvania as an Attorney with Dougherty Leventhal & Price, LLP for over 25 years.