Can Employers Require Mandatory Vaccinations? BY JOEL GREENWALD
those that apply to flu vaccination and could compel a dif- ferent analysis. Is A Mandatory Flu Vaccination Policy Even Legally Per- missible? It CAN be. Absent a state or local law to the contrary, private employers are likely not prohibited from requiring employees to get a flu shot to keep the employees and the workplace safe. But as with most legal questions, there are some stipulations and limitations. The federal Occupational Safety and Health Act (OSHA) requires an employer to maintain a workplace that is free of recognized hazards. Seemingly, this would permit an employer to require the flu vaccine to help protect the workplace. However, the Americans with Disabilities Act (ADA) limits an employer’s ability to make medical-related inquires and/or conduct medical examinations of employ- ees — except in limited scenarios. Specifically, the medical exam or inquiry would need to be job-related and consis- tent with business necessity. This “necessity” would need to be based on a reasonable belief that an employee’s ability to perform essential job functions will be impaired by a medical condition, or the medical condition will pose a significant risk of substantial harm to workplace health or safety. The employer’s belief must be based on factu- al information, not just subjective perceptions or irrational fears of the medical condition. Essentially, there has to be a specific and reasonable basis to believe that requiring a
As winter approaches and the pandemic continues, many employers are considering mandating that their employ-
ees get vaccinated (most common- ly for the flu, and for COVID-19, if/ when the vaccine becomes avail- able). Aside from certain industries (like healthcare in some states) where a flu vaccine may be re- quired by governing agencies or laws, we are often asked whether a business can, or even should,
Joel Greenwald
require employees to get a flu shot, and eventually the COVID-19 vaccine when available. We discuss here the le- gal nuances associated with such a mandate, and things to consider before deciding to implement a mandatory vaccination policy. Neither government agencies nor the courts have yet addressed whether a COVID-19 vaccination mandate at the workplace would be lawful. Therefore, the discussion here largely relates to flu vaccination issues, which may be instructive for when a COVID-19 vaccine becomes avail- able. We do note that the circumstances, law, and guid- ance relating to a COVID-19 vaccine may be different than
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