ADA

Mandatory COVID-19 Vaccines Pose Potential Pitfalls for Employers

During President Trump’s speech at the Republican National Convention on August 28, 2020, he promised a COVID-19 vaccine “by the end of the year, or maybe even sooner.” This raises the question of whether or not an employer may require mandatory COVID-19 vaccinations of its employees to avoid infecting other employees, if and when a vaccine becomes available. Subjecting employees to mandatory COVID-19 vaccines could expose the employer to potential lawsuits. As an example, several months ago, a North Carolina nurse filed a lawsuit accusing a hospital of firing her for refusing a mandatory flu shot. The similarities between a mandatory influenza vaccine and a mandatory COVID-19 vaccine cannot be ignored. These issues will likely implicate the Americans with Disabilities Act (42 U.S.C. § 12101, et seq. (“ADA”)) and Title VII (42 U.S.C. § 2000e) which are both enforced by the U.S. Equal Employment Opportunity Commission (“EEOC”). The ADA and Title VII apply only to employers with 15 or more employees. Under California laws such as the Fair Employment Housing Act (“FEHA”), which makes it unlawful for an employer (with 5 or more employees) to discriminate against or treat an employee less favorably based on protected categories such as disability, employers may be required to provide reasonable accommodations unless doing so would cause undue hardship. Accommodations may include allowing employees to wear a mask or providing a transfer to a different employment position with less public exposure.