The Vaccine Dilemma: Can Employers Require them as a Condition of Employment?

With all the talk about vaccines lately, both those that already exist for influenza and others  that may soon arrive in the battle against Covid-19, employers are asking a fundamental question: can I require my employees to be vaccinated as a condition of continued employment? The answer is generally “yes,” since there are important health reasons at play in the workplace for employers to address. But as with almost all matters of law, there are exceptions.

As a starting point on this issue, employers are generally empowered to institute policies that are aimed at protecting the health and safety of employees, customers and others with whom their workers may interact. The touchstone is the reasonable necessity of doing so. Employer authority in this area might extend to matters as obvious as policies against bringing weapons into the workplace or driving company vehicles at excessive speeds. It also might exist as to matters that some would question or object to, such as physicals aimed at ensuring a worker can perform certain job functions or vaccines against less common diseases such as hepatitis. In normal years and in most workplaces, vaccine requirements are not top-of-mind, so issues surrounding them might never arise. 2020 being anything but normal, of course, flu vaccines are being required by some employers already and evaluated by many others. Because safety concerns are unquestionably in play as to both the flu and, obviously, the coronavirus, there should be no impediment to general rules requiring that employees be vaccinated against both.

There are, however, exceptions that should or must apply. In the first instance, employers should think carefully about whether employees who don’t normally appear at work – or who can work at home if/as they may desire – should be required to get them. This is true for a variety of reasons, not the least of which is that the approach may help retain quality workers who have personal objections to being vaccinated for one reason or another. In addition to this, employers may need to provide employees an opportunity to object to vaccines on either religious or disability grounds. Notably, a bona fide religious objection to vaccination may shield employees from vaccine requirements despite the fact it could at the same time present safety concerns for employers. In addition, employees who suffer certain handicaps may require accommodations from vaccine requirements when medically appropriate. In each of these cases, employers should consider employee requests, evaluate their bases, and, where appropriate, work with employees to devise workplace adjustments that will satisfy the needs of all concerned. In all situations, both individual and overall worker health and safety should be considered.