Take COVID-19 vaccine or else: legal pitfalls for employers

The imminent availability of a COVID-19 vaccine has garnered massive public attention. Perhaps the most pressing question from Colorado employers is, “Can employees be required to take the vaccine once it’s available?” Perhaps, but state law presents additional considerations beyond federal disability and religious discrimination concerns, labor laws, and employer liability issues.

Federal considerations about mandatory COVID-19 vaccinations

Disability and religious discrimination under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964, employer liability under workers’ compensation laws and the Occupational Safety and Health Act (OSH Act), and labor law issues under the National Labor Relations Act (NLRA) all present significant challenges to employers looking to implement mandatory COVID-19 vaccinations, each of which could be the subject of an entire article.

Disability discrimination. You can’t mandate vaccinations under the ADA unless they’re “job-related and consistent with business necessity” (including when necessitated by a “direct threat”). Assuming a COVID-19 shot would satisfy the standard, the Act still requires exemptions if employees have ADA-covered disabilities that may prevent them from taking the vaccine.

For ADA-protected employees, you must consider “reasonable accommodations” such as an exemption or additional personal protective equipment. The Act requires you to explore and resolve the issues through the interactive process and provide accommodations absent undue hardship.