Jan 07, 2021

Can Employees Be Forced to Get the Covid-19 Vaccination?

By: Marissa Cerkoney

Welcome to 2021! With the new year brings new hope that the end is near for the COVID-19 pandemic. In an attempt to make that hope a reality, a vaccine has been created and is beginning to make its way across the country and into the arms of those willing to take it. Although there are many different opinions on the vaccine, a question that individuals are wondering is whether their employers can force them to get the COVID-19 vaccination. In short, the answer is yes. By law, private employers can implement general working conditions, including the adoption of health and safety within the workplace such as requiring employees to get vaccinated. According to the Equal Employment Opportunity Commission (EEOC), employers may encourage or require COVID-19 vaccinations, but policies must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.

If an employee has a disability, the employer should be aware of potential ADA issues that may arise from requiring the COVID-19 vaccination. Under the ADA, an employer can have a workplace policy that includes "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace." If an employee is unable to comply with the vaccination requirement due to their disability and the employer has determined that unvaccinated employees would pose a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.

The EEOC has also stated that a COVID-19 vaccination requirement by itself would not violate the ADA law that prohibits employers form conducting some types of medical examinations. The EEOC provided guidance that the vaccine is not a medical examination if it is administered to an employee by an employer for protection against contracting COVID-19 and is not subject to the ADA because the employer is not seeking information about an individual’s impairments or current health status.

When determining whether to require the COVID-19 vaccination, employers should also consider Title VII, which mandates an employer to accommodate an employee’s sincerely held religious belief, practice, or observance, unless it would cause an undue hardship on the business. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace, according to the EEOC. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

The Takeaway:

If an employer plans to require its employees to get a COVID-19 vaccine, they should develop a written policy while keeping in mind that these policies must comply with workplace laws. The employer could also consider going a different route and rather than requiring the vaccine, they could encourage and incentivize employees to get vaccinated. Whatever the employer decides, it is important to be consistent with that decision and apply it to all employees equally.

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My law firm’s goal is to give understandable information and to foster discussion about real-life issues facing human resource professionals. If we are not achieving that goal or if you would like us to address other employment law issues, please email me at mcerkoney@ndlaw.com. We promise to take your comments and ideas to heart.

Disclaimers
(Otherwise known as “the fine print”)

I make a serious effort to be accurate in my writings. These articles are not exhaustive treatises, though, so do not consider them complete or authoritative. Providing this information to you does not create an attorney-client relationship with my firm or me. Do not act upon the contents of this or of any article on our homepage or consider it a replacement for professional advice.

Reprinted with permission from an article submitted for publication in the January, 2021 Southwest Area Human Resource Association newsletter.