As businesses start to arise from the Covid fog and move back into true office environments, some employers are grappling as to whether they can mandate that their employees get a Covid-19 vaccine (the “Jab”). The short, general, answer is yes absent a medical or religious exemption. However, mandated Jabs are a tricky proposition.
Under the Americans with Disabilities Act (“ADA”), if an employee has a medical reason, constituting a disability, to resist the Jab the employer must provide a reasonable accommodation unless it would cause undue hardship. For a religious exemption, under Title VII of the Civil Rights Act employees are protected from workplace discrimination based on a sincerely held religious, ethical, or moral belief. If such beliefs are violated by taking the Jab, employers must provide a reasonable accommodation unless it causes an undue hardship. Examples of reasonable accommodations for exempt Jabbers would include working from home, modifying office space or hours, and providing personal protective equipment (“PPE”).
While reasonable accommodation situations create their own issues, they might pale to the liability risks employers could face if they force the Jab. What happens if an employee has an adverse reaction to the Jab, either immediately or later due to issues like an antibody-dependent enhancement (ADE) reaction? The employee would almost certainly seek damages against the employer, via a worker’s compensation claim or otherwise, that could be substantial depending upon the injury. The exposure to the employer may also be enhanced since the Jab is not FDA approved and is being utilized under an Emergency Use Authorization (EUA).
Given the lack of case law / guidance on employer mandated vaccines, as well as the EUA status of the Jab, many employers might choose to merely recommend their employees get the Jab rather than make it a condition of employment. Each situation is different, so employers must carefully weigh the risks and benefits if they are considering requiring submission to the Jab as a condition to employment.