The development of multiple COVID-19 vaccines less than a year after the pandemic began is an incredible scientific achievement. That said, some people have concerns that the speed of the roll out might have caused the drug developers to miss health dangers that could be associated with the vaccine. This presents a dilemma in the workplace, where employers are anxious to bring employees back into their physical offices, warehouses and other locations, but only if this can be done safely. Many employers will argue that requiring employees to be vaccinated will contribute to a safe workplace because vaccinated employees are less likely to contract the virus and spread it to others.

The issue of whether employers can require employees to be vaccinated turns to some degree on whether a vaccination is a “medical examination.” There are regulations that prohibit forced medical examinations absent some business necessity, but until recently it was unclear whether vaccinations amounted to a “medical examination.” In December of 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance indicating that a vaccination is not a “medical examination,” which likely means that employers can, up to a point, require employee vaccinations. The key issues we anticipate developing relate to reasonable objections to vaccination either on religious grounds or due to some disability. For example, it appears that vaccinations are contraindicated for individuals who have sensitivities to certain allergies.

The question will then arise about whether individuals who are opposed to being vaccinated due to a health condition can be accommodated either in the workplace or by working remotely. Indeed, this issue of working remotely is likely to become a central feature of reasonable accommodation cases in the future, as the pandemic environment has demonstrated to many industries that employees can be effective working from home. In the future, employees who request to work from home due to difficultly ambulating, driving or due to some other factor will likely have a much more receptive potential jury pool.

The EEOC only issues “guidance” and it is far from clear how these issues will ultimately play out. If you have COVID-19 concerns related to your workplace, please call the lawyers at the Law Offices of Buchsbaum & Haag, LLP at 562-733-2498.