Can Employers Make COVID-19 Vaccines a Requirement for their Workforce?

Pfizer and Moderna recently announced that their experimental coronavirus vaccines appear to be 95% effective, prompting employers to consider if they can require employees to vaccinate once doses are accessible to the general public. The short answer is yes, companies probably will be able to ask their workforce to vaccinate as a condition of employment, but several caveats and exceptions will likely apply.

The federal Equal Employee Opportunity Commission (EEOC) is the entity that will ultimately provide businesses with definitive guidance regarding how they may handle coronavirus vaccinations with their workforce.  The Commission has guidance available about COVID-19 testing and safety requirements at work, but they have not published pandemic-specific vaccination requirements as of yet.  However, EEOC guidance for employers concerning Flu vaccination and other vaccines is available. It is reasonable for companies that want to get ahead of the game when it comes to COVID-19 to use it as a reference point.

According to preexisting federal sub-regulatory guidance about other vaccines, employers may make vaccination a job requirement, as long as they provide reasonable notice and allow for exemptions and accommodations for people with sincerely held religious objections and demonstrable disabilities.  Sincerely held religious beliefs are legally different than medical or ethical objections to vaccination.  Employees who do not want to take a vaccine because of medical concerns or non-religious personal reasons do not need accommodation.  However, if they can show sincere religious objections, their employer cannot require vaccination. Furthermore, if an employee requests a reasonable accommodation due to a physical disability, the Americans with Disabilities Act (ADA) requires getting one.  For example, if a person says they cannot take a COVID-19 vaccine because of an allergy to one of the vaccine’s agents, the employer could require medical documentation.  They would also have to provide a reasonable alternative, like always wearing an employer-provided N-95 mask while at work.

To ensure fair and equitable access to any COVID-19 vaccine, an employer that wishes to ask employees to take it should provide it to its workforce onsite and at no cost.  Before offering any onsite vaccinations, employers should provide their workers with ample notice and be mindful of any potential vaccine side-effects.

Employers can also influence employee access to any new vaccination to protect against the coronavirus through their group health insurance plan. A recently released federal regulation clarifies how all health plans must cover COVID-19 diagnostic testing without imposing cost-sharing and medical management requirements for as long as the COVID-19 public health emergency period lasts.  The rule also addresses how plans must cover qualifying COVID-19 vaccines.  Unlike other preventive care services, COVID-19 vaccines must be covered on a first-dollar basis even if an out-of-network provider provides the vaccine.  Plans must reimburse out-of-network vaccine providers “in an amount that is reasonable, as determined in comparison to prevailing market rates for such service.”

It will not be necessary for the United States Preventive Services Taskforce (USPST) and the Advisory Committee on Immunization Practices classify a COVID-19 vaccine as appropriate for “routine use” to meet the definition of “qualifying coronavirus preventive services.” That means plans will be able to cover COVID-19 vaccines on a first-dollar basis right away.  The regulation specifies that health plans must consider an approved COVID-19 vaccine part of the plan’s preventive care coverage within 15 business days of a formal federal recommendation from the Food and Drug Administration.

It is also worth noting that the special rules for qualifying coronavirus preventive services only apply during the public health emergency.  However, even after the Secretary of Health and Human Services declares the public health emergency to be over, COVID-19 vaccinations will likely remain a recommended service by the USPST and the Advisory Committee on Immunization Practices and thereby covered under the ACA’s general preventive service rules.