The FDA has recently approved COVID-19 vaccines for emergency use and as the country receives its first doses of the vaccination, the future is in-sight for a return to normalcy. With this, employers may wonder whether they can require an employee to receive a COVID-19 vaccine. In December 2020, the EEOC released guidance on this prospect. The EEOC did not explicitly state that an employer can mandate a COVID-19 vaccination, rather the EEOC discussed what an employer can do after it has mandated a vaccine.
While the EEOC side-stepped a direct response to the question, the guidance it released should make any employer skeptical to require its employees to receive a vaccine. Specifically, employers who require a vaccine have to make careful considerations about how to implement that requirement without violating the Americans with Disabilities Act (ADA) and religious protections under Title VII.
Here are what employers should consider about both of those protections:
The ADA, among other directives, requires employers to provide reasonable accommodations in response to an employee’s disability. The EEOC said that an employer can only require a vaccination when a worker poses a direct threat to themselves or others without a vaccination. The EEOC did not provide additional guidance on what qualifies as “a direct threat.”. However, if an employer can eliminate or reduce the risk of substantial harm or a direct threat to the safety of its workers, and others, through reasonable accommodation, then the employer cannot require a vaccination.
Given that many companies have allowed its employees to work remotely or have found other methods to allow in-person working, it is likely that an employer would be able to provide reasonable accommodations that would prevent it from mandating a vaccine for its employees.
Additionally, employers must consider those employees with disabilities that prevent them from receiving a vaccination. In that case, those employers would be required to provide reasonable accommodations to: (1) allow that employee to be physically present in the workplace; and (2) otherwise not take any actions against them that could be in violation of the ADA or other laws.
Religious protections under Title VII:
Employers must also consider whether requiring a vaccination could impede on an employee’s religious beliefs. Under Title VII, employers must provide reasonable accommodations for employees with sincerely held religious beliefs, practices, or observances that prevent employees from receiving a vaccine unless it provides the employer undue hardship. Undue hardship for purposes of religious accommodations means having more than a minimal burden on operations of the business.
An employer can request additional information if the employer has an objective basis for questioning the sincerity of a person’s religious beliefs. However, what is considered “objective” is not always clear, and an employer should consult an attorney before exploring this scenario.
If the employer has decided that it will require employers to get a vaccine and has fully considered all reasonable accommodations necessary, then the next step is ensuring that its employees received their vaccination. The simplest way an employer can confirm this is to request a receipt. However, the employer should make sure that the employee does not disclose additional medical information in that receipt, so as not to potentially violate the ADA.
Additionally, if an employee did not receive a vaccination, employers should tread lightly with asking why, as this may qualify as a medical inquiry, which employers can only do for job-related and business purposes.
If an employee cannot receive a vaccine for disability or religious reasons, and the employer cannot provide a reasonable accommodation, then the employer could exclude the employee from the workplace. However, this does not mean the employer can automatically terminate the employee. An employer finding itself in this predicament should consult an attorney before acting further.
Finally, employers should work hard to ensure that any mandated vaccination policies are applied consistently among its employees. To help more easily navigate all these legal issues, it may be more effective for an employer to encourage, and not require, its employees to receive a COVID-19 vaccine.