Currently, there’s a whirlwind of controversies whether employers can require and mandate employees to get vaccinated in order to return safely to the workplace. Many employers have undertaken a 180-degree workforce transformation since many directors and officers have realized that the business they run can operate successfully on a remote basis. But what happens when an in-person meeting is required? Is it reasonable or even legal to mandate all employees to be vaccinated? The answer to those questions might be quite cumbersome.
The Centers for Disease Control and Prevention (“CDC”) has released certain guidelines around best practices for employers to build confidence in COVID-19 vaccines, including providing a workplace vaccination program, among other measures. However, employers must proceed with caution not to make the vaccine mandatory to the entire workforce since there are certain exceptions that could potentially expose the employer to liability if it makes a mandatory vaccination policy.
Whether an employer may require, or mandate COVID-19 vaccines is a matter of state law and federal law. In New York State, an employer is able to mandate vaccinations of its workforce. In fact, New York State and New York City employees may be compelled to vaccinate, if they have not already done so. It appears that vaccination hesitancy stems from the fact that the Food and Drug Administration (“FDA”) has not given permanent approval to any of the COVID-19 vaccines to date. This fact has fostered debates around the safety and short and long-term effects of the vaccines.
Employers can and should implement two types of exemptions when requiring their workforce to be vaccinated for in-person meetings. Those exemptions are: (1) medical conditions, since some individuals may be at a higher risk of an adverse reaction to the vaccine due to allergies or vaccination may exacerbate underlying medical conditions posing a serious or severe risk to their health; and (2) religious beliefs. An alternative for those exempt individuals is for employers to require them to provide proof of a negative rapid test before entering the workplace and the establishment of a COVID-19 policy to insure the health and well-being of its employees.
Nonetheless, pressure is mounting and the fast-spreading Delta variant might also be another catalyst that will drive authorities to tighten regulations around the vaccine. Protests have already erupted in the United States, where unvaccinated individuals demand protections arguing that vaccination mandates violate their human rights, liberty and/or freedom.
On August 3, 2021, New York City Mayor Bill de Blasio said that proof of vaccination (at least one dose) will be required for indoor activities, including restaurants, gyms and other events. Such policy is expected to start as early as August 16, 2021.
Certainly, everyone should pay close attention and monitor how these events play out since these are unprecedented times where laws, rules and regulations may change to adapt and atone to the everchanging circumstances driven by the global COVID-19 Pandemic.