News & Insights

Considerations Before Mandating Employee Vaccinations

April 21, 2021

Jerry “Jay” L. Stovall, Jr. Partner, Breazeale, Sachse & Wilson, LLP

Considerations Before Mandating Employee Vaccinations
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Employers are considering whether or not they should require or incentivize their workers to take the vaccine when it becomes widely available. Below are key issues to consider.

Americans with Disabilities Act (ADA), Title VII, or related laws

Right now, employers CAN require most employees to get the vaccine if it meets a legitimate job requirement. However, you must accommodate employees with a disability who are unable to take the vaccine because of a disability (ADA) as well as employees who object to being vaccinated due to sincerely held religious beliefs (Title VII). If either the ADA or Title VII applies to your situation or if no legitimate job requirement exists, you may not be able to force the employee to accept the vaccine. 
Rather, you might accommodate the employee by allowing them to work remotely or offer them an alternate schedule that does not require as much co-worker and patient interaction. The U.S. Equal Employment Opportunity Commission (EEOC) has stated that getting the COVID-19 vaccine is not considered a medical examination. However, questions asked during the vaccination process can elicit medical information in violation of the ADA. Thus, this information should remain with the vaccine administrator and not be provided to the employer.

Fair Labor Standards Act (FLSA)

As an employer, you must consider if the time spent by your workers being vaccinated is compensable time under the FLSA. If you require that they be vaccinated, employees may have a legitimate claim to compensation for the time spent doing so. 

Workers' Compensation and Civil Liability 

One of the primary concerns of employers is that they may open themselves to workers' compensation and civil liability claims if an employee suffers an adverse reaction due to the vaccine. At this time, there is insufficient case law to say with certainty whether or not these types of claims will succeed.

Voluntary Wellness Programs

Many employers are considering offering employees some sort of incentive to encourage them to be vaccinated. Employers should carefully consider the ramifications of each type of incentive. A cash reward could constitute a non-discretionary bonus that must be included in a non-exempt employee's regular rate of pay for the period in which it was earned. In addition, employers must consider whether or not offering an incentive would constitute a "voluntary wellness program" that might be prohibited by the EEOC guidelines. 
Bottom line: Employers should carefully consider the risks and benefits of requiring or incentivizing employees to take the COVID-19 vaccine before they do so. Contact your attorney for advice specific to your practice.

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