Can Employers Require Employees to be Vaccinated for COVID-19?

| April 16, 2021

With a nationwide vaccination program now a full go, businesses are looking forward to returning to pre-COVID work schedules. Many are considering whether they can (or should) require employees to be vaccinated as a condition of continued employment.  Employment law questions have been raised, given the legal protections of workers under the Americans with Disabilities Act (ADA) and other federal laws.

Historically, this is not a new issue.   In 1905, the United States Supreme Court decided the case of Jacobson v. Massachusetts, upholding a state law that required a smallpox vaccine.  In 2009, both the EEOC and the Occupational Safety and Health Administration allowed employers to require workers to be vaccinated against the H1N1 (“swine flu”) virus.

The most current legal guidance comes from the Equal Employment Opportunities Commission, which, in response to the availability of the COVID vaccines, updated its guidance regarding mandatory vaccinations. The EEOC guidance can be accessed here.

EEOC GUIDANCE

In general, the EEOC concluded that employers can require employees to provide proof of vaccination, with two notable exceptions for (i) employees who refuse the vaccination because of sincerely held religious beliefs; and (ii) employees who are unable to receive the vaccine because of a disability.

The EEOC guidance analyzes a vaccination mandate as being in furtherance of an employer’s programs to provide a healthy workplace.  During the pandemic, employers may require employees to submit to temperature checks, to stay home if they have symptoms, to wear masks, to social distance, and to get a test if exposed to the virus. Essentially, the EEOC sees requiring the vaccine as part of the same already existing authority vested in employers to assure a healthy workplace.

RELIGIOUS OBJECTIONS

There are two primary limitations on an employer’s authority to require employees to be vaccinated in order to come to work.  The first is that employees can seek a religious exemption under Title VII. The employee must demonstrate that he or she has a sincere religious belief that conflicts with the employer mandate and that he or she has informed their employers of that conflict.  The objection must be of a religious nature, and not just a personal belief or preference.  However, once the objection is made, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.”

In such cases, employers are required to make “reasonable accommodations” to employees who object on religious grounds.

DISABILITY OBJECTIONS

If a person is unable to get a COVID vaccine because of medical reasons, that will be considered a pre-existing disability for which the employer must grant reasonable accommodation under the ADA.  The employer must determine if the unvaccinated individual “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.”  This requires an assessment based on the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.

SHOULD AN EMPLOYER IMPOSE A VACCINE MANDATE?

The EEOC has weighed in on the question of whether an employer can impose a vaccine mandate.  That does not answer the question of whether an employer should do so.  Certainly, an employer mandate should only be instituted after careful consideration of its impact on employee morale and workplace safety.  State and local laws may also impact that decision, and obtaining local legal counsel is very much recommended.

Any such decision should be approached with caution. Employers can also choose to make employee vaccination voluntary or encourage vaccination through wellness programs. Those employers who choose to require vaccinations must in the course of their program: (i) exercise due care in administering it; (ii) refrain from asking any unnecessary medical or screening questions; (iii) keep confidential any medical information received from their employees; and (iv) engage in an interactive process with any employees who request accommodation or seek exemption from being vaccinated for health-related or religious reasons.


Category: Law

About the Author ()

Email | Website | Craig F. Ballew heads the labor and employment practice group at Ferguson, Schetelich & Ballew, P.A. He represents management providing comprehensive services which address the constant changes in labor/employment law. He has extensive experience as a lead negotiator for management in collective bargaining, as well as the defense of employment claims, and risk management. He is active in counseling churches and ministries in all labor and employment matters.