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In recent months, we’ve been asked numerous times whether or not companies can require employees to be vaccinated against the COVID-19 virus. When I last checked a few days ago, the vaccination rate in Alabama was below 30%. That low rate puts Alabama near the bottom of states. With such a low rate of vaccination, many healthcare professionals remain very concerned about spikes in COVID-19 infections. We can do much better.

Will more companies try to require coronavirus vaccinations? If COVID-19 cases start increasing significantly, I suspect we will see many more companies begin requiring vaccinations. Companies with offices and plants across the United States may also establish general company-wide policies related to vaccinations.

Do We Have Any Clear Legal Guidance Concerning COVID-19 Vaccinations?

Back to the question in this post’s title. Can your employer require the COVID-19 vaccination? Based on current guidance, the answer is generally, yes, under Federal law.

If we’ve been asked the question numerous times, I’m sure other lawyers have as well. I’m guessing that’s why I’ve seen a bunch of law firm marketers post the question (without an answer) to firm websites and blogs in order to generate calls. One Huntsville firm, even posted a page to their website asking the question but containing only CDC coronavirus infection statistics with a generic request to call them for more advice. It’s the scare-into-calling approach. Rather than useless pleas to call the lawyers, let’s get to the best current answer we can provide.

On May 28, the Equal Employment Opportunity Commission (EEOC) published guidance on the issue of COVID-19 vaccinations. According to the EEOC publication:

• Federal employment laws do NOT prevent employers from generally requiring all employees entering the workplace to be vaccinated for COVID-19. However, employers must provide reasonable accommodations under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. These laws would require employers to accommodate employees who could not receive vaccinations due to issues such as disability or religious faith. In other words, companies can enact fair policies requiring workers in the workplace to be vaccinated.
• Federal employment laws do NOT prevent employers from offering incentives to employees to provide documentation of vaccination obtained from a third-party (not the employer).

So, yes, companies can generally require vaccination to attend a workplace. Last week, a Federal Judge in Texas dismissed a lawsuit by several employees of a hospital system who tried to argue their employer could not require vaccination as part of their employment.

All this vaccination talk raises additional questions about companies who simply require vaccinations (from an outside provider) versus companies actually administering vaccinations. Under the EEOC guidance, employers that are actually administering vaccinations would need to act carefully not to coerce employees into disclosing other protected medical information.

Federal law provides protections for protected medical information. These protections are important in the workplace. Take the Family Medical Leave Act (FMLA) for example. Employers need some information necessary to providing leave. But, empoyers cannot be overly intrusive. Nor should everyone in the plant know your personal medical details!

Do We Have Any Legal Issues Under Alabama Law Related To Vaccinations?

In the last legislative session, the Alabama Legislature passed a law attempting to provide significant immunity to businesses from lawsuits related to COVID-19 exposures and illnesses. Personally, I think the “immunity” bill was largely ceremonial in nature so legislators could show their loyalty to the business community. Like every issue, legislators rush to pander to their financial backers. Why do I say that? I say that because actually proving you caught the coronavirus at a specific business (under any but the most egregious conditions) would be difficult to impossible anyway. But, let’s return to talking about vaccinations.

What if you suffer an injury from the vaccine? Before I go down that road, let me say that vaccinations are needed and beneficial. The benefits to society far outweigh the minute risks of some extremely unlikely injury. I’ve been vaccinated because I want our community to be healthy and return to normal.

Think about surgeries. In many of our personal injury cases, we deal with clients facing surgeries. With surgery, there is a small risk. When a surgery is needed and necessary, that small risk can be far outweighed by the potential benefits. Every day, patients undergo necessary surgeries to protect their health. Every day, patients undergo necessary surgeries to try and return to a normal life.

Enough of the public service message. If you suffer an injury from a vaccine, do you have a workers’ compensation claim? I actually had a case several years ago where a nurse suffered a serious adverse reaction to a hepatitis booster shot offered by the local medical clinic in Decatur where she was employed. It was a very interesting legal issue with almost no prior cases in Alabama. We were able to obtain important work comp benefits for our client after a long legal fight. It was a long legal fight during which I had to find an expert in vaccines. So, I do have some personal legal experience on this issue which is unique.

In my prior case involving the nurse and a hepatitis vaccine, her employer actually provided the vaccination. Her employer paid for the program and administered the injection. The employer called the program “voluntary” but encouraged and administered it. I believe there is a key difference between employers simply requiring proof of vaccination by an outside source versus employers actually administering the vaccinations as part of the work. Where the employer actually administers the vaccinations, issues or claims concerning work comp benefits are a real possibility. How would our courts handle those claims? In our prior court case, I could find almost no precedent. I did find a helpful opinion by the Alabama Attorney General concerning healthcare companies requiring certain vaccinations which had been issued many years earlier. I was able to argue successfully the case so that the insurance company decided to provide benefits. But, the case was settled before a final decision by our courts. So, the legal issue remains unsettled. Beyond the legal issue, you would still have to prove the shot actually caused your injury medically. That’s a whole other difficult issue.

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From its office in Huntsville, the Blackwell Law Firm helps people with serious personal injuries across Alabama. Many of our cases involve a serious injury in the workplace. We have tried cases to verdict in counties across the state.