CAN EMPLOYERS REQUIRE THAT EMPLOYEES GET VACCINATED?
As COVID-19 vaccines become widely available, many employers are asking if they can require employees to get vaccinated, and what they can do if workers refuse.
The Equal Employment Opportunity Commission (EEOC) has provided guidance that addresses some workplace vaccination questions. Employers may encourage or possibly 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, according to the EEOC.
For example, employees with religious objections or disabilities may need to be excused from the requirement or the employer must otherwise provide accommodations.
If an employee refuses to get vaccinated, an employer needs to weigh the risks that the objection poses, particularly if an employer is mandating that employees receive a COVID-19 vaccine. 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 a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
The EEOC has indicated that employers should evaluate four factors to determine whether a direct threat exists:
◾The duration of the risk.
◾The nature and severity of the potential harm.
◾The likelihood that the potential harm will occur.
◾The imminence of the potential harm.
If an employee who cannot be vaccinated poses 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. According to the EEOC, “managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration.
Employers and employees should work together to determine whether a reasonable accommodation can be made. In doing so, employers should evaluate:
◾The employee’s job functions.
◾Whether there is an alternative job that the employee could do that would make vaccination less critical.
◾How important it is to the employer’s operations that the employee be vaccinated.
Title VII requires an employer to accommodate an employee’s sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business. Courts have said that an “undue hardship” is created by an accommodation that has more than a “de minimis,” or very small, cost or burden on the employer.
The definition of religion is broad and protects religious beliefs and practices that may an employer may not be familiar with or understand. Therefore, according to the EEOC, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief”. Moreover, “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 is unwilling to get vaccinated because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, an employer can exclude the employee from physically entering the workplace. However, this does not mean that an individual employee can be automatically terminated. Employers will need to determine if any other rights apply under the EEOC or other federal, state and local authorities.
Recently, some employers are mandating COVID-19 vaccinations before job applicants are hired. This does not address current employees but it is certainly an option for employers.
For current employees, if an employer plans to require its employees to get a COVID-19 vaccine, it should develop a written policy. For employees who refuse to be vaccinated, the employer needs to determine why.
In addition to legally protected reasons, employees may have general objections to receiving a COVID-19 vaccination that do not require a reasonable accommodation. Employers considering mandating vaccines should seriously consider the possible consequences. For example, if a significant number of employees refuse to comply, the employer will be put in the very difficult position of either adhering to the mandate and terminating all of these employees, or deviating from the mandate for certain employees, which can increase the risk of discrimination claims.
Employers may seek to encourage and incentivize employees to get vaccinated, by considering options such as:
◾Develop vaccination education campaigns.
◾Make obtaining the vaccine as easy as possible for employees.
◾Cover any costs that might be associated with getting the vaccine.
◾Provide incentives to employees who get vaccinated.
◾Provide paid time off for employees to get the vaccine and recover from any potential side effects.
The key is to communicate clearly and often with employees and help them understand the reasons for vaccinations.