Mandatory COVID-19 Vaccinations: Can We or Can’t We?

We have received a lot of questions recently regarding mandatory vaccinations.  The short answer is that employers can require its employees to get the COVID-19 vaccine as a condition of employment but must accommodate (where possible) objections based on medical or religious objections.

According to Guidance issued by the Equal Employment Opportunity Commission in December 2020,  employers can require workers to get vaccinated against COVID-19 with certain exceptions.  In essence, the EEOC said employers can require that employees get vaccinated as a condition of going to work, unless an employee declines because of a disability or a sincerely held religious belief.  In such cases, the employer must offer a reasonable accommodation to the employee, such as working remotely or continuing to wear a mask, as long as the accommodation doesn’t cause an “undue hardship” for the employer.  If there is no accommodation possible, then an employer may prohibit the employee from entering the premises but not necessarily fire the employee.  In this situation, the employer will need to determine if the employee has other rights under federal, state, or local laws, including the ability to take unpaid leave under the Family and Medical Leave Act or the Americans with Disabilities Act. 

Under the ADA, before an employer can exclude a worker from the physical worksite, the employer must determine if the unvaccinated employee presents "a significant risk of harm to health or safety" that cannot be eliminated or reduced through reasonable accommodations (i.e., mask wearing; social distancing; private office; etc.). 

The EEOC also clarified that vaccination does not constitute a “medical examination” under the ADA that would require an employer show “it is job-related or consistent with business necessity."  The Centers for Disease Control and Prevention, however,  recommends asking screening questions before administering a vaccine to ensure there is no medical reason that would prevent a person from receiving it.  Employers that ask such questions in conjunction with providing the vaccination would be engaging in a “medical inquiry” that would have to meet the “business necessity” standard.  This requirement would not apply, however, if receiving the vaccine is voluntary (and answering the pre-screening questions is voluntary) or if a third-party provider without a contract with the employer, like a pharmacy, administers the vaccine.  As such, an employer can avoid this business necessity standard if it requires employees to get vaccinated through their own means — going to a pharmacy or a primary care physician.

Employers can ask workers if they have received the vaccine without implicating the either the ADA or the Genetic Information Nondiscrimination Act. 

For access to the EEOC Guidance:  https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

 If you have any questions regarding mandatory vaccinations or need any assistance in this regard, please do not hesitate to contact the attorneys at Hoffman & Hlavac.  To stay updated on the key labor and employment law developments that affect your workplace, be sure to subscribe to our blog and follow us on social media.