As COVID19 vaccinations become more widely available over the next few months, employers should now begin to consider some questions around what their policy or position will be regarding the vaccination of their employees.
Could you and should you require employees to be vaccinated?
In summary, in most situations employers may require employees to be vaccinated to continue working for the employer or before the employee can return to the worksite if the failure to be vaccinated constitutes a “direct threat” to other employees or customers/clients in the workplace while the COVID19 virus remains a pandemic.
For some employers, implementing a mandatory vaccination policy may make sense, particularly for employees in positions that provide direct interaction with vulnerable populations. On the other hand, a mandatory vaccination policy may result in some employees who refuse to have a vaccination seeking employment elsewhere or force an employer into making difficult decisions regarding employees who refuse to be vaccinated.
Also, any mandatory vaccination policy would require exceptions to be made for employees who cannot be vaccinated because of a medical condition/disability or a sincerely held religious belief. If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance and would pose a direct threat to the health and safety of others in the workplace, and there is no reasonable accommodation possible to reduce the threat, the employer may be able to physically exclude the employee from entering the workplace. However, this does not mean the employer may automatically terminate the worker as the employer will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities, such as whether the employee can be accommodated by performing his/her position remotely. In addition, unionized employers will need to review the collective bargaining agreement before establishing any vaccination policies.
Can you monitor and track employees who have and have not been vaccinated?
Simply requesting proof that the employee has had a COVID-19 vaccination so the employee can remain in the workforce would generally not be considered a disability-related inquiry or exam since medical/disability information is not being requested. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, or pre-screening questions if the employer administers the vaccine, may elicit information about a disability and thus open up ADA considerations. Therefore, any such inquiries should be clearly “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination, the employer should specifically advise the employee not to provide any medical information as part of the proof, again in order to avoid receipt of unwanted medical information that may have ADA implications.
An employee’s refusal of a vaccination due to sincerely held religious beliefs may require the employer to reasonably accommodate the employee’s objection. In situations where an employee objects to the vaccination for purely secular or non-medical reasons (i.e., the employee believes the vaccine is unsafe, but there is no medical condition/disability nor any sincerely held religious belief or observance), the employee would not qualify for protection or accommodation under the ADA or Title VII.
The above employer considerations are based upon the current guidelines regarding COVID 19 vaccinations. As the vaccine is not yet fully available and the guidelines issued by the EEOC, CDC, etc. are periodically updated and evolving, questions regarding any employee vaccination policy must be carefully reviewed. The EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.