The perfect storm of COVID-19 and the flu is expected to descend on New York and New Jersey this fall. Employers understandably want to take all reasonable precautions to keep their workers safe. But can they require employers to get vaccinations?
To date, federal and state agencies have not issued guidance regarding future COVID-19 vaccination. However, agencies like the Equal Employment Opportunity Commission (EEOC) have addressed the annual flu vaccine. State also have statutes that dictate who must receive an annual flu shot.
Mandatory Flu Vaccination
Eighteen states have enacted flu vaccination requirements for hospital healthcare workers, and 16 states establish requirements for hospital patients. New Jersey only mandates flu shots for small children. It does not require workers, even those in the healthcare industry, to get vaccinated against influenza.
The New York State Department of Health requires that all workers of healthcare and residential facilities who could potentially expose patients or residents to influenza either receive seasonal influenza vaccinations or wear a surgical mask during the period when influenza is prevalent in New York State (as determined by the state’s Commissioner of Health). New York also mandates flu shots for young children who attend daycare, Head Start, pre-K or nursery school.
Workplace Vaccination Policies
In the absence of regulations, employers are free to establish their own workplace vaccination policies. However, to avoid facing legal liability, mandatory flu vaccination policies must provide for exceptions, as well as outline the steps that workers must take to rely on them.
For instance, an employee may be entitled to an exemption from a mandatory vaccination requirement based on a medical condition that prevents him from taking the influenza vaccine. Under the Americans With Disabilities Act (ADA), employers must provide a reasonable accommodation barring undue hardship, i.e. significant difficulty or expense. Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose more than a de minimis hardship.
Employers that do not want to require vaccination can still strongly recommend that employees get a flu shot. To bolster these efforts and facilitate the process, employers can run a free flu shot clinic on site, offer “prizes” for workers who elect to get vaccinated, and allow workers to take paid time off to get vaccinated.
Given that COVID-19 can lead to lengthy employee absences and even force business closures, the benefits of a safe and effective coronavirus vaccine will be significant. Once inoculated, workers likely will hopefully be able to fully return to the office, interact with customers, and travel freely. Nonetheless, employers should carefully review any regulatory guidance that may be available before establishing a policy regarding COVID-19 vaccination. Much like the flu shot, employers will likely be required to allow employees to opt out of COVID-19 vaccination if they have medical or religious objections. At the same time, employers will also be likely to bolster vaccination by offering free vaccination at the workplace, much like flu shots.
If you have questions, please contact us
If you have any questions or if you would like to discuss the matter further, please contact me, Maryam Meseha, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.