By Christina M. Reger, Esq. and Tatiana Cook

As COVID-19 vaccines roll out, I have many employers asking: “can I mandate a vaccine?” For many months, we did not have an answer to that; but, thankfully the EEOC has spoken. Based on guidance issued by the EEOC in December U.S. employers can require their workers to get vaccinated against COVID-19; but the real question is should they?

There are many landmines that come with imposing such a requirement on employees. Aside from the general fear of injecting a new cocktail of drugs into your body that has the fastest approval rate in FDA history, employees are scared. Putting this fear aside however, there are other legal concerns.  

      Under the ADA, employers are prohibited from administering a medical examination as a prerequisite for employment or continuous employment. However, the EEOC has recently announced that a vaccination in itself is not considered a medical examination. A medical examination is a “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” Examples include “vision tests; blood, urine, and breath analyses; blood pressure screening and cholesterol testing; and diagnostic procedures, such as x-rays, CAT scans, and MRIs.” A vaccination is not considered a medical examination because the employer is not seeking information about an individual’s impairments or current health status. However, an employer may not issue a pre-screening question about a vaccination, unless a vaccination is job-related and consistent with business necessity.

      Even if an employer does mandate a vaccine an employee can object for religious or disability concerns. If they do, employers should know that it will have to provide reasonable accommodations.  However, objecting to a vaccine because of a political belief is not protected under federal law and an employer is not required to accommodate such objection.

While mandating a vaccine can be tempting for employers to get their workers back in the office, offering incentives in a voluntary program may be a better way to go. Employers who do want to mandate the vaccine should focus on distributing factual and trustworthy information, communicating how the vaccine will be administered, and allowing employees to schedule a vaccination appointment.