With COVID-19 vaccines seemingly on the horizon, employers may be tempted to require all employees to get vaccinated with an FDA-approved serum to maintain a safe workplace for all employees.  Before implementing such a requirement, however, employers should consider and balance several important factors.

Consideration No. 1:

Can an employer require employees to obtain a COVID-19 vaccine a condition to returning to work? The answer in Texas is Yes and No.

Texas is an at-will employment state, allowing employers to establish conditions of employment. Employers can set health and safety conditions for employment which, in theory, could require employees to take the vaccine prior to returning to work. However, employers’ ability to set conditions of employment, including health and safety conditions such as a vaccine requirement are not unfettered.  The Americans with Disabilities Act (ADA) and Title VII of the Civil Rights of 1964 Act provide statutory limits on the types of conditions employers may impose.

Consideration No. 2:

What are some of the limitations on requiring employees to be vaccinated?  Under the ADA, certain individuals may be exempt from being vaccinated. The treatment the influenza vaccine is accorded under the ADA is perhaps the closest parallel to a COVID-19 vaccine.  Below are some of the ADA exemptions recognized for influenza vaccines.

a.    Medical – Under the ADA, employees can seek a mandatory vaccine exemption on medical grounds that prevents the employee from taking the influenza vaccine;

b.    Religion – Employees can seek a vaccine exemption by notifying the employer that an employee’s sincerely held religious belief, practice or observance that prevents him or her from taking the influenza vaccine; and

If exemptions are claimed, then the employer may be required to make reasonable accommodations.  For instance, the employee can request alternative accommodations, such as use of personal protective equipment, working separately or working from home.

Consideration No. 3

Depending on the amount of vaccine available and the states’ ability to distribute it, employers might find it logistically impossible to require all employees to obtain the vaccine before returning to work. Even if the FDA fast tracks approval of the COVID-19 vaccines, it is unlikely that anyone other than the most essential of essential workers—healthcare providers and first responders—will be eligible to receive the vaccine for the first 3-6 months. At this juncture, it is anticipated that the vaccine will be distributed in several phases based on the occupation, age, and medical condition (those at high risk for COVID 19 due to underlying medical conditions) of workers.

Consideration No. 4

Employers should also consider the legal implications if the vaccine has dangerous or unintended side effects or complications. If an employer requires the vaccination as a term of employment, and the vaccination ends up causing injury to the employee, the employer could be responsible along with the vaccine manufacturer for such injuries. Potential worker’s compensation claims could result. This becomes an even more important consideration for Texas employers who have decided to opt-out of worker’s compensation system and may face significant legal exposure.

Consideration No. 5

And lastly, employers should consider their employees’ comfort level with taking a vaccine that has been developed on a rushed schedule and surrounded by politics. It is to be expected that there will be fear associated with taking this vaccination and whether that vaccine has been appropriately tested to be safe.

Given the constantly changing advice provided by the CDC and state and local authorities and the implications of both federal and state law that involve medical conditions, you should always consult with an attorney, human resources manager and risk manager before deciding how to proceed.  The attorneys in our Austin and Dallas offices are available to answer any questions you may have.

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