Disclaimer: This article is provided for informational purposes only and is not intended as legal advice. Please consult a legal professional or attorney with specific questions.
As with many HR matters, the question of requiring one’s employees to get a COVID-19 vaccine is complicated. According to the Equal Employment Opportunity Commission (EEOC), you generally can require the vaccine as a precondition for coming to work in person. But, just because you can do it doesn't mean it’s always the best or the only way.
Employers must be mindful in their approach and stay on the right side of federal and state laws regarding the ADA, health privacy, and potential discrimination. In this blog, we’ll look at what you need to keep in mind with a COVID-19 vaccination for your employees.
Recent guidance from the EEOC indicates employers can require that employees be vaccinated in order to come to work. And odds are employers who do this have the health of their workers and everyone they interact with in mind. But despite good intentions, it still may not be possible to attain 100 percent vaccination among staff. Exemptions may apply for some employees, and in those cases, you must follow the law.
The most common exemptions are related to employee disability and religious beliefs, though pregnancy-related medical conditions may also qualify, as these points from the National Law Review explain:
- Exemptions under the ADA. The Americans with Disabilities Act (ADA) allows employers to require that an employee not pose a direct threat of substantial harm to the health and safety of themselves or others. However, some medical conditions and disabilities make the vaccine dangerous or otherwise inappropriate for some individuals. In terms of vaccination specifically, employers need to determine the level of that threat (e.g. working with the public, close contact with others) or if a reasonable accommodation is possible for that employee (e.g. different job duties, remote or other work location).
- Religious beliefs. Under Title VII of the Civil Rights Act of 1964, employees may request an exemption due to their sincerely held religious beliefs, practice, or observance, unless it causes undue hardship on the business. It’s important to note; however, that “social, political and economic beliefs, and a general ‘anti-vaccine’ viewpoint” are not protected classes under Title VII. As always, your state or local laws may differ, so be sure to check those too.
- Pregnancy-related medical conditions. These may constitute disabilities under the ADA. Further, the “Pregnancy Discrimination Act requires an employer to treat women affected by pregnancy, childbirth and related medical conditions the same as others who are similar in their ability or inability to work or, here, in their ability or inability to receive the vaccine. Many state and local laws also require employers to accommodate pregnant women.”
The bottom line is this: you generally can’t fire someone for not getting the vaccine, even if your company mandates it. If an employee requests an accommodation for one of the exemptions described above, under the law, employers must offer what’s called a reasonable accommodation to that employee so that they can continue to work. Examples include, but are not limited to, working remotely or being reassigned to a different job duty. This requirement applies as long as the accommodation doesn’t cause “undue hardship” to the employer.
If an unvaccinated employee is determined to pose a direct threat and if there are no accommodations available that do not pose an undue hardship for the business, the employer can exclude the employee from the worksite.
It’s important to note that “the EEOC has not adopted a blanket rule that an employee who is not vaccinated for COVID-19 will constitute a ‘direct threat’ to others ... and the ‘direct threat’ must be evaluated on a case-by-case basis, and must ultimately result in a determination that the unvaccinated employee will expose others at the workplace to COVID-19,” according to this article in National Law Review.
Keep in mind that the employer’s health and safety practices, such as cleaning and masking, may also need to be examined when assessing possible direct threats and accommodations.
Who Should Administer the Shots?
Mandatory and voluntary vaccination policies must also take into consideration who is giving the shots. Obviously, they must have proper training for giving the injection itself, but the entire procedure must also comply with anti-discrimination requirements, so proceed with caution.
One potential issue is the prohibition on employers conducting “medical examinations” of their employees. The EEOC says giving a vaccine is not considered to be a medical exam; however, “pre-vaccination screening questionnaires may implicate either the ADA's prohibition on disability-related inquiries or the Genetic Information Nondiscrimination Act (GINA),” which prohibits employers from asking for employee's genetic information.
In general, employer-provided vaccinations are trickier to navigate on this matter. Contracting with a third party (e.g. pharmacy, health care provider) to distribute vaccines on-site or off-site may mean those pre-screening questions violate the ADA prohibition on disability-related inquiries.
According to this article, “under both the ADA and GINA, the safest route for employers will be to require that employees receive a vaccine from their primary healthcare provider or a neighborhood pharmacy, with the employees then required to provide proof of inoculation to their employers. If employers choose to go this route, there is no prohibition on asking employees to provide proof of vaccination.”
Encouragement, Education, and Incentives
Whether vaccination is mandatory or voluntary, it’s possible some employees will be hesitant given the newness of the vaccine. A recent poll by Gallup found about 65 percent of Americans said they would be willing to take the vaccine if it were offered at no cost. If that seems distressingly low, it’s actually tied with the polio vaccine (in the mid-1950’s) for the highest rate of vaccine willingness in US history, according to.
Building morale and trust around the process is important, especially if you hope to achieve a high level of vaccination among your employees. There are some steps you can take to encourage and educate them about the COVID-19 vaccine, such as:
- A formal policy. Create a written policy for your program, be it mandatory or voluntary. Outline requirements employees must follow, including any incentives and providing proof of vaccination, if you’re implementing a voluntary program. You can also include a note in your policy that you may decide to make vaccinations mandatory at a future date. Finally, check worker's compensation requirements in your state to assess your potential legal liability for any adverse reactions/allergic reactions.
- Designate a program coordinator. This puts a name and face with the program and gives employees a contact person for questions or concerns. The coordinator makes sure that information about the program and the vaccine is distributed, and that program records are up to date and in compliance.
- Incentives. Some employers are currently offering incentives to encourage voluntary vaccination, such as paid time off to obtain the shot and more. If you opt for this route, you might consider extending the incentive to employees who can show they received the vaccine prior to the start of your program. And, if you anticipate making your program mandatory in the future, note that in your policy and indicate clearly that the incentive would cease to apply at that point.
- Provide reliable information. Educating employees about the vaccine can help encourage them to take the vaccine. Just be sure any information you provide is official, reputable, and not political or otherwise biased. Some options include:
- Do your part. Keeping workers and the public safe is about more than vaccination. Employers have an obligation under OSHA’s general duty clause to provide a safe and healthful workplace, free from seriously recognized hazards, including COVID-19.
For Further Reading …
The topic of mandatory vaccination is a complicated one, and we suggest taking the time to read up on it as well as consulting the proper legal authorities before instituting a policy. These additional sources of information may be helpful to you:
- Be Careful About Vaccine Incentives
- Employers Can Legally Require COVID Vaccines - But Will They?
- COVID-19 Vaccines Receive Emergency Approval: But Can and Should U.S. Employers Force Employees to Take it?
- What Employers Can Do If Workers Refuse a COVID-19 Vaccination
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