Yes, Non-Health Care Employers Can Require Vaccination But May Not Need To Do So For A While

We published an article yesterday entitled Health Care Employers Should Be Able to Mandate Inoculation Once FDA Approves Vaccine.  We focused specifically on the health care industry because their workers appear to be the first people to whom the new COVID-19 vaccines will be available.  Therefore, health care employers will be the first to face the question of whether vaccines can be mandated.

Not surprisingly, we then heard from representatives of a number of other industries asking “What about us?  Can we require our employees to be vaccinated?”  For the reasons stated in yesterday’s article, the answer appears to be “Yes” but not before the following two conditions are met:

  1. The Food and Drug Administration (FDA) officiallyapproves the vaccines; and
  2. The vaccines are available to workers in that industry.

We expect FDA approval within the next week or two so no issue there.  However, access to COVID-19 vaccination may not be possible for a large segment of workers for many, many months.  Current planning anticipates that essential employees (e.g., those in public safety, utilities, education) may be next in line, followed by persons considered high risk due to age and/or underlying medical issues.  Only then will other people be eligible for vaccination and as such, as a very practical matter, employers really cannot require their workforce to be vaccinated until vaccination is available to their employees.

Bear in mind too that for employers with a unionized workforce, the imposition of a required vaccination policy is a mandatory subject of bargaining under the National Labor Relations Act. Therefore, employers may need to give the union representing any affected employees notice and an opportunity to bargain over the implementation of any newly implemented vaccination policy, unless, of course, the existing labor contract provides that management may implement such a policy unilaterally.

For more information on mandated vaccination, read our very informative article referenced above.

Other Considerations

–  If a vaccination is made mandatory and carries side effects which result in injury or illness to the employee, the injury could be considered a work-related injury covered by workers’ compensation. However, if the vaccine was simply suggested, but not required as a condition of employment, any injury resulting from the vaccine would likely not be covered by workers’ compensation.

–  From an employee relations standpoint, it may be prudent to consider whether there are any effective solutions other than a flat mandate. For example, a strong recommendation of vaccination combined with other safety precautions, such as requiring masks/other social distancing measures, could result in a very high compliance rate. With respect to the influenza vaccine, policies requiring employees to “opt-out” by affirmatively explaining why they do not wish to receive the vaccine have been shown to have high participation rates, despite not being mandatory.

–  Not mandating the vaccine may especially be prudent given the novel nature of the virus and the public’s general lack of trust for the safety/efficacy of the COVID-19 vaccine (due in part to its unprecedented development speed). Indeed, in a Gallup poll conducted from October 19, 2020 through November 1, 2020, only 58% of those surveyed said they would receive a COVID-19 vaccination (although it is likely that this percentage will increase if a vaccine eventually receives full FDA approval). In fact, as more people receive the vaccine and show little or no side-effects, voluntary vaccination may increase, thereby minimizing the need for a policy mandating it.

Bottom Line

Employers outside the health-care industry likely have the ability to mandate vaccination of their workforce once the FDA approves one or more of the vaccines.  However, the need to do so may be relatively distant given the current predictions of when the vaccines will be available to the general population.