Since states have begun to distribute the COVID-19 vaccine, many employers wonder if they can require employees to get the COVID-19 vaccine. If you are a business owner, now is the time to think about approaching the vaccine in your workplace.
The Equal Employment Opportunity Commission (EEOC) updated its guidance in mid-December. The updates include what an employer may and may not do in terms of requiring or encouraging employees to get the vaccine. Since the beginning of this pandemic, government agencies have routinely updated their guidance on COVID-19 topics. We expect the vaccine guidance to be no different.
The EEOC says that you are allowed to require employees to get the COVID-19 vaccine. However, as with all things during this pandemic, it remains to be seen how this will change. There could be litigation, the potential of new state and local laws, and emerging guidance, so it’s prudent for employers to adopt a voluntary/encouraged/recommended COVID-19 vaccine policy for now.
There are some things you can do to promote higher levels of participation:
- Provide education about the COVID-19 vaccine to your employees.
- Lead by example. Share with employees if leadership is getting the vaccine.
- Make it easy for employees to get it and provide paid time off for anyone who experiences side effects.
- You could even cover any associated costs.
Below is some information that will give you a basic understanding of the EEOC’s current position. The information focuses on medical confidentiality and how to accommodate employees who do not want to get a COVID-19 vaccine.
It is the EEOC that enforces workplace anti-discrimination laws, including:
- The Americans with Disabilities Act (ADA) and the Rehabilitation Act. This law includes the requirement for reasonable accommodation and non-discrimination based on disability and rules about employer medical examinations and inquiries.
- Title VII of the Civil Rights Act. This law prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy.
- The Age Discrimination in Employment Act. This one prohibits discrimination based on age, 40 or older.
- The Genetic Information Nondiscrimination Act
Like other federal agencies during this pandemic, the EEOC states: “Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.”
It’s worth checking with a local attorney about state or local laws that may offer additional protection for your workforce for question – Can an Employer Require Employees to Get the COVID-19 Vaccine
The most important thing to know is that you ARE allowed to require employees to get the COVID-19 vaccine.
You are responsible for providing a safe workplace, and protecting your employees and customers from a deadly virus falls into that category. Think about this: What happens if an employee accuses you (as the business owner) of NOT protecting them because you DIDN’T require the vaccine?
Considerations Under the American Disabilities Act
Getting a vaccination is not considered a medical examination. This is because getting the vaccine does not seek information about someone’s physical or mental health. However, pre-vaccination screening questions are likely to get you into ADA territory. If the vaccine is administered by you or a third party hired by you, you must show that disability-related screening inquiries are “job-related and consistent with business necessity.” These questions would be about allergic reactions, a recent positive COVID-19 test, and so on.
To meet this standard, you would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination will pose a direct threat to the health or safety of her or himself or others.
There are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement:
- First, if an employer has offered a vaccination to employees on a voluntary basis (i.e., employees choose whether to be vaccinated), the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.
- Second, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.
The ADA requires employers to keep any employee medical information obtained in the vaccination program confidential.
Can you Require Proof of a COVID-19 Vaccination?
If you are not offering vaccines on-site but still encouraging or requiring employees to get a vaccine, can you ask an employee to provide proof? Yes and no. The EEOC says, “There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. By just requesting proof of receipt of a COVID-19 vaccination, it is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.
However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the ADA standard that they are “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof to avoid implicating the ADA.
Disability Vaccine Objections
Let’s look specifically at employees who object to being vaccinated due to disability or a sincerely held religious belief. The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if this standard screens out an employee with a disability, you must show that an unvaccinated employee would pose a direct threat to the health and safety of your other employees. You must measure the duration of the risk, nature, and severity of the potential harm, the likelihood that the harm will occur, and the imminence of the harm.
Moreover, even if you determine all of these things are true, you cannot exclude that employee from the work site unless there is no way to provide a reasonable accommodation that would eliminate or reduce this risk. Relocating the employee’s workstation, reducing or eliminating contact with others while at work, and staggering shifts would all be reasonable accommodations. If you are unable to reduce the threat to an acceptable level, you may exclude the employee from the workplace, but termination should be the very last resort. If it’s an option, working from home would be the simple fix. If not, consult an attorney before taking any steps to furlough or terminate.
Engage the employee and work together to determine the best solution. Train your management team on your internal policies, how to engage with employees who are unable to receive the vaccine due to disability, and the importance of non-discrimination and non-retaliation.
Religion-Related Vaccine Objections
If an employee claims a sincerely held religious belief, practice or observance prevents them from receiving the vaccine. You must provide a reasonable accommodation unless it would pose an undue hardship under Title VII of the Civil Rights Act. Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. 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 assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If 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. For more on this, check out SHRM’s Vaccine FAQ page.
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