Employer Considerations for COVID-19 Vaccines

March 4, 2021

Daniel J. F. Peabody, Labor and Employment

Phoenix, Arizona

Recent news regarding COVID-19 vaccines seems to be overwhelmingly positive.  Johnson & Johnson has developed a single-dose COVID-19 vaccine which will soon enter manufacturing and distribution stages to eventually become widely available in the United States, along with the currently available Pfizer and Moderna vaccines which are now being administered to anyone 55 years or older in Arizona and essential workers, depending on state protocols.  With these positive developments, however, employers are now faced with the decision of what role vaccinations play in returning to the workplace.  In particular, employers must decide whether they want to require employees to receive a COVID-19 vaccination before returning to the workplace.

Fortunately, whether employers can require a COVID-19 vaccine before allowing employees to return to the workplace is clear.  Under the current state of the law, employers may require that employees receive the COVID-19 vaccination as a condition of returning to the workplace.  There are exceptions to this rule, however, of which employers need to be aware.  In particular, any such requirement is limited by the employees’ need for a medical or religious accommodation.  Further, employers must be careful not to run afoul of any already existing agreement with any union and to consider the need to bargain with any existing union.

Beyond the above, there are practical considerations to any COVID-19 vaccine policy.  In particular, although acceptance of the vaccine seems to be rising, some may still be hesitant to embrace the vaccine.  Further, unlike most policies, there are serious logistical considerations.  For example, if the vaccine is required, is it best to have the vaccination occur on-site?  If not required on site, what form of proof will be necessary and sufficient?

The above are just a few considerations regarding a COVID-19 vaccine policy.  Jennings, Strouss & Salmon will continue to monitor the guidance, regulation, law, and additional practical considerations related to COVID-19 as they continue to develop.  For more information on this topic, to ensure compliance with these complex issues, or for help drafting a COVID-19 vaccine policy, please contact Daniel J.F. Peabody or another member of the Firm’s Labor and Employment department.