Many employers are considering whether they can or should require employees to get the COVID-19 vaccine once it is available. Distribution and availability of the vaccine is such that the general public does not yet have access to it, but employers should begin considering how they want to address this issue.
As with any topic that involves the health and medical care of employees, employers should know to proceed cautiously. There are a number of factors that should be considered by any employer that wants to require employees to be vaccinated for COVID-19.
May an Employer Make COVID-19 Vaccines Mandatory for Employees?
The short answer is yes, employers can require employees to get the COVID-19 vaccine, so long as certain circumstances apply to the employer.
On December 16, 2020, the United States Equal Employment Opportunity Commission (EEOC) issued new guidance for employers relating to the COVID-19 pandemic, including what employers can and cannot do with respect to requiring employees to get a COVID-19 vaccine.
Under the Americans with Disabilities Act (ADA), employees can be required to get the COVID-19 vaccine if the employer determines that unvaccinated employees pose a “direct threat” to the health and safety of themselves or other individuals in the workplace, whether this is co-workers, clients, customers, or others.
It is generally agreed by the EEOC, CDC and other agencies that COVID-19 transmission is a “direct threat” to health and safety in the workplace, meaning that in most circumstances, an employer can require employees to get vaccinated for COVID-19. An unvaccinated employee poses a direct threat for COVID-19 transmission both to themselves and others they come in contact with.
Most workplaces qualify as facing a direct threat from COVID-19, if individuals interact in-person at least occasionally. Some workplaces may not qualify if, for example, there is only a small number of individuals on-site, spread out in a way that interpersonal interaction almost never occurs.
What if an Employee Cannot Be Vaccinated or Refuses the Vaccine?
As any employer with experience addressing issues under the ADA or Title VII of the Civil Rights Act likely knows, situations frequently arise that require a specific approach for individual employees. Some employees may not be able to get or may refuse to take the vaccine. In some cases, the employer will be required to attempt to reasonably accommodate those employees.
There are two exemptions that may require an employer to attempt to accommodate an unvaccinated employee: the disability exemption and the religious exemption. The disability exemption under the ADA applies when an employee’s disability prevents them from being safely vaccinated. An employee must notify the employer of the disability, and the employer and employee must then engage in an “interactive process” to reach a reasonable accommodation that will allow the employee to continue to work while also addressing the “direct threat” to workplace safety that the employee poses by being unvaccinated.
The religious exemption under Title VII applies when an employee’s “sincerely held religious belief or practice” prevents them from being vaccinated. This is a broad, often confusing label that can be difficult for employers to apply. Generally, employers should take a request for such an exemption seriously, and should engage in the same interactive process to reach a reasonable accommodation that will allow the employee to continue to work safely in some capacity.
Reasonable accommodations can come in many forms, and vary greatly depending on the nature of the work. It may be possible for some employers to allow the employee to work from home, or the employee may be able to work in an office with a closed door with limited interaction with others.
Employers Should Plan Ahead.
An employer who is considering implementing a COVID-19 vaccination requirement should consider the vaccine’s availability at the time and whether the employer can reasonably expect that its employees can get the vaccine. In addition, employers should keep in mind that exceptions to mandatory vaccinations may be required, such as disability considerations or religious accommodations.
Employers who are considering mandating COVID-19 vaccinations for their employees should contact an employment law attorney to review the policies and plans being considered. The attorneys of Davis Grimm Payne & Marra are experienced with this and many other COVID-related topics, and would be glad to help your company.