The short answer is “yes.”
While there is some debate whether an employer can require its employees to get a vaccine that is currently subject to an Emergency Use Authorization (“EUA”), there is near unanimity that, subject to certain exceptions under state and federal anti-discrimination statutes, once a vaccine receives full FDA authorization, an employer may require vaccination, or proof of vaccination, as a condition of employment.
Most employees in Ohio are at-will, which means that an employer may terminate them for any or no reason, provided the termination is not based on certain legally protected classes, or in retaliation for the exercise of legally protected conduct. There is no question that an employer may terminate an employee for violation of workplace health and safety rules, generally, even if that employee has an employment contract or is a member of a union.
Employers who require vaccination still have an obligation to reasonably accommodate the sincerely held religious beliefs and disabilities of employees under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, respectively. Ohio Revised Code § 4112 codifies these same requirements at the state law level. An employee who refuses vaccination on the basis of a sincerely held religious belief or a disability that contraindicates vaccination must be accommodated unless doing so would place an undue burden on the employer. While what constitutes an undue burden is always decided on a case by case basis, employers will have a much easier time demonstrating undue burden in the context of religious accommodation, where they need only show that the accommodation would impose more than a de minimis cost. In some cases, the accommodation may be to allow the employee to forgo vaccination.
In analyzing whether to allow an employee to continue working despite reluctance to a company’s vaccination policy, the employer should consider the requirements of the position, their particular industry, and the benefits of universal vaccination in their workplace. While all workplaces benefit from having a healthy workforce and employees who are confident in the safety of their work environment, many businesses will also benefit from their customer base knowing that their employees have been vaccinated.
Some have suggested that because the vaccines are currently offered under an EUA, an employer may not condition employment on vaccination. This argument is based on language in the section of the Federal Food, Drug and Cosmetic Act that provides for such emergency use. As to products under an EUA, the Act requires that individuals be given the “option to accept or refuse administration of the product,” and must be made aware “of the consequences, if any, of refusing the product…” While the CDC and FDA have historically taken the position that vaccines cannot be mandated under an EUA, neither agency has ever made this its formal policy and no court has ever taken up the issue. When, not if, the issue ends up being litigated, a likely defense is that the statute simply requires that an individual be made aware of the consequences, which in some instances may be termination.
The bottom line is that once a vaccine receives full FDA approval, unless an employee has a religious objection or a disability related reason to avoid vaccination, an employer may require vaccination as a condition of employment. Until full FDA approval is granted, the issue remains a little murky.