As COVID-19 vaccines begin being administered, many employers and employees continue to consider how and where they work. This raises the question of whether or not you can require your employees to get a COVID-19 vaccine.

In short, yes, employers can require employees to get a COVID-19 vaccine. However, the full answer to that question is much more complex in that there are many legal implications and other considerations to keep in mind.

Official guidance.

On Dec. 16, 2020, The U.S. Equal Employment Opportunity Commission (EEOC) published “a new section providing information to employers and employees about how a COVID-19 vaccination interacts with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).”

Note: Other federal laws, as well as state or local laws, may provide employees with additional protections. Additionally, the EEOC’s guidance is not binding on the courts.

ADA

The Equal Employment Opportunity Commission (EEOC) confirmed that a COVID-19 vaccination requirement by itself would not violate Americans with Disabilities Act (ADA). That law prohibits employers from conducting some types of medical examinations.

Per the EEOC, a vaccination for protection against contracting COVID-19, where the employer is not seeking information about an individual’s impairments or current health status, is not a medical examination under the ADA. This is significant because employers must show that any medical exam or disability inquiry under the ADA is both “job related and consistent with business necessity.”

ADA concerns could potentially arise if an employer contracts a third party to administer a vaccine. According to the CDC, to safely administer vaccines, health care professionals must “always screen patients for contraindications and precautions before a vaccine is administered, even if the same vaccine was administered previously.” In the place that contractors are asking these pre-screening questions on behalf of the employer, which could impact the provision of the ADA on disability-related inquiries, it is still your responsibility as an employer to show that these questions are “job-related and consistent with business necessity.” In addition, to satisfy this standard, based on fair evidence, you must therefore suggest that you have a reasonable belief that an employee who refuses to answer questions that result in no vaccine will pose a health or safety threat to themselves or others.

Alternatively, it is possible to ask disability-related screening questions without needing to satisfy the criteria of “job-related and consistent with business necessity” under the following two conditions:

  1. If you offer a vaccine to your employee on a voluntary basis. For example, allowing your employees to choose whether or not they’d like to be vaccinated. Under the ADA, an employee’s choice in answering pre-screening questions relating to a disability must also be voluntary, and you cannot “retaliate against, intimidate, or threaten” an employee for choosing not to answer.
  2. If you require a vaccine, and an employee receives one from a third party that you are not contracted with, “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.”

If an employer requires a vaccination and an employee refuses to obtain a vaccine, the employer needs to evaluate the risk that refusal poses.

Disability Accommodation: 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 said 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. 

When it comes to asking employees for proof of vaccination, to avoid running into implications with the ADA, be sure to inform the employee to not provide medical information along with the proof of vaccination.

Title VII of the Civil Rights Act of 1964

According to the EEOC, “Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees, as well as employment agencies and unions, from discriminating in employment based on race, color, religion, sex, and national origin.” In order to avoid implications with the Title VII of the Civil Rights Act, once you are aware of an employee’s religious practice or belief that prevents them from receiving a vaccination, you must provide a reasonable accommodation unless it poses an undue hardship on the conduct of your organization.

Religious accommodation: 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.

Some potential factors relevant to undue hardship include:

  • “The type of workplace;
  • The nature of the employee’s duties;
  • The identifiable cost of the accommodation in relation to the size and operating costs of the employer;
  • The number of employees who will in fact need a particular accommodation.”

Please defer to EEOC guidance for further information on undue hardship.

The employer should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief incompatible with vaccination. Vaccine refusal cannot, however, be a personal or politically motivated belief, such as a general “anti-vaccine” viewpoint. However, you will be justified in seeking further supporting evidence if you have objective reasoning for questioning either the religious nature or the sincerity of the given belief, practice, or observance.

GINA

The EEOC explains, “Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances.”

According to the CDC’s explanation of COVID-19 vaccines, requiring employees to receive a COVID-19 vaccine does not raise any concerns with GINA as it does not disclose genetic information or involve the use of genetic information to make employment decisions. However, potential GINA violations may occur if pre-screening questions seek family medical history that could elicit genetic information.

Providing reasonable accommodation.

Under any circumstance of which an employee cannot receive a COVID-19 vaccination, whether it be a disability or religious practice or belief, you are required to provide reasonable accommodation. These accommodations can include the following:

  • Allowing the employee to work remotely.
  • Reducing the employee’s contact with others by implementing changes to the work environment such as “designating one-way aisles; using plexiglass, tables, or other barriers to ensure minimum distances between customers and coworkers whenever feasible per CDC guidance or other accommodations that reduce chances of exposure.”
  • Following other CDC guidelines like wearing a face mask, gloves, social distancing, etc.

While the above summarizes whether or not you can require your employees to receive a COVID-19 vaccination, it is highly recommended that you refer to federal, state, and local public health authorities’ guidelines and suggestions. Visit the EEOC’s Q&A titled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to read more on the topic.

While the above post outlines a few of the legal factors regarding employees and the COVID-19 vaccine, there are other considerations to think about as well, including:

  • Impacts to employee engagement and morale.
  • Liability concerns.
  • The potential for future remote work.
  • Providing education to your employees on the vaccine.
  • The potential for providing the vaccine on-site when it is available to do so.

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Disclaimer: Please note that this is not all inclusive. Our guidance is designed only to give general information on the issues actually covered. It is not intended to be a comprehensive summary of all laws which may be applicable to your situation, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion.  Consult your own legal advisor regarding specific application of the information to your own plan.