This week, this first doses of COVID-19 vaccinations arrived in Alaska. With the anticipation of the vaccine many employers are asking, “Can we require our employees to be vaccinated?” The simple answer to this question is yes, however, there are a number of things an employer should consider before issuing a policy mandating vaccination.

When determining the vaccination policy for an organization, an employer should consider whether they want to take a mandatory approach or one which encourages, but does not require, vaccination. Some organization staff (such as health care workers or those working with vulnerable populations) have an unavoidable exposure to COVID-19 and the employer may wish to mandate vaccinations. However, for employees in positions where social distancing can be easily accomplished, it may be more appropriate to take a “personal-choice” stance.

APEI members should also be aware of the fact that for the next several months, at least, supplies of the COVID-19 vaccine will be limited.  It may make sense to initially set a policy encouraging but not requiring this vaccine, and then consider adding a requirement at a later date when the vaccine is more available.

If an employer chooses to mandate the vaccine for some or all of their employees, there are a number of things that need to be considered:

1. First and foremost, there are two situations that require an employer to accommodate an employee’s refusal to be vaccinated: employees who cannot be vaccinated due to a disability or due to sincerely held religious belief. How each of these situations is managed varies depending on the associated law:
   • Employee with a disability: Under the Americans with Disabilities Act, an employer may request information from an employee requesting accommodation, including documentation from the worker’s medical provider to confirm the employee’s specific limitation or disability and the need for accommodation.
   • Employee with sincerely held religious beliefs: Under Title VII of the Civil Rights Act of 1964, employers generally should assume that requests for religious accommodations are based on sincerely held beliefs. While it is permissible for an employer to challenge a religious exemption, the rules governing such a challenge are complicated and you should talk with us or your attorney before doing so. Employers do not have to accommodate secular or medical beliefs about vaccines.

In these cases, the employer must offer a reasonable accommodation to the employee, such as working remotely, as long as the accommodation doesn’t cause “undue hardship” for the employer. It is worth noting that employers can ask workers if they have received the vaccine without being in violation of the ADA or the Genetic Information Nondiscrimination Act.

2. An additional consideration when developing a policy is that unionized employers probably will need to address collective bargaining obligations before the organization communicates vaccination policies to staff.

One question employers may have is, “Will we be liable if the we do not require vaccination and employees get sick?”.  This question may result from concerns about workers’ compensation coverage, or to a concern that the employer may be found to have failed to provide a safe work environment as required by the Occupational Safety and Health Act.

For workers’ compensation, the issue of a vaccine mandate is irrelevant to the question of whether an infected employee is eligible for workers’ compensation benefits.  An employee’s eligibility for WC  benefits is determined based on whether their COVID-19 infection arose out of and in the course and scope of their employment, regardless of whether or not they were vaccinated.

The question of potential liability under OSHA rules is currently unknown because there is little or no relevant case history. APEI will continue to monitor this topic and provide guidance to members as we receive new information.

For more information and guidance regarding workplace vaccinations, we recommend visiting the EEOC’s What You Should Know page.