It’s a hot topic these days for companies and workers alike – can an employer require an employee to be vaccinated against COVID-19 as a condition of keeping their job, or as a condition of returning to in-person work? The Equal Employment Opportunity Commission (EEOC) issued important guidance in December. To read the guidance first-hand, go to Section K of this web page: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. Many employers can require employees to be vaccinated, but it might not be the best approach for all employers. Employee morale and turnover concerns may cause an employer to decide not to. Requiring a vaccine may also open workers’ compensation issues in the case of serious problems from the vaccine.
If the need for a vaccine is directly related to the employee’s work – e.g., if they work at a hospital’s ICU or at a long-term care facility – the vaccine can be a condition of continued employment in that position. These employees are already used to these rules, e.g., with the annual flu shot.
That is a limited group of people though, so what about the rest of the workforce? The answer may depend on how many employees a business has. If the business has 15 or more employees, it is subject to state and federal versions of the Americans with Disabilities Act (ADA) and Title VII of the 1964 Civil Rights Act (Title VII), the latter prohibiting discrimination based on religious beliefs. While businesses with less than 15 employees may not face legal liability for violating the ADA or Title VII, they still face the reality that mandating a vaccine may not be best for morale, and turnover (from firing or resignation) is expensive.
To avoid liability under the ADA or Title VII, an employer of 15 or more workers that requires the vaccine must be prepared to deal with an employee indicating they are refusing the vaccine based on health condition (where it is not medically advisable to vaccinate) or on sincerely held religious beliefs. For health exemptions, employers can require medical documentation that there is a basis for not vaccinating, but cannot inquire into the details to determine if the medical exemption exists. Note that being afraid to take the vaccine due to the risk of side effects, or because it was developed quickly, is not by itself a health exemption. Employers must remember that religious beliefs are broadly defined, and may differ from those familiar to the employer. If an employer thinks a religious claim may not be sincere, the employer can ask reasonable questions, which might include whether the employee has received or refused other vaccinations. Employers are wise to have trained managers handle all communication with employees about exemptions.
When a medical or religious exemption exists, the employer can likely prohibit the employee to returning to on-site work from remote work. Under the ADA and Title VII, though, before terminating employment, the company must look at what reasonable accommodation could be made. Title VII requires accommodation if it can be done at a minimal cost or burden, whereas the ADA requires accommodation if it doesn’t involve significant or substantial cost or burden. Questions to consider include:
- Can this job be done remotely?
- Can other precautions be taken to minimize contact with this employee on-site?
- Is the reason for the exemption temporary (e.g., during pregnancy, during certain medical treatment) or permanent?
- How many people the employee would have contact with at work are already vaccinated? If others are not vaccinated, how many of those people are at high risk?
If reasonable accommodations cannot be made under the applicable ADA or Title VII standard, then the employer can legally terminate employment.
On the other hand, employers may fear criticism by some employees that they are not doing all they can to keep workers healthy if they don’t require vaccines. Polls have shown a significant minority of people think their employer should require vaccination. To address those concerns, companies should be prepared to provide generalized education that the law recognizes some reasons for not being vaccinated (without giving information about specific employees). Those companies should also be prepared to continue to implement protocols that limit the spread of infection, like distancing when possible and asking employees about symptoms before entering the plant.
Kim K. Steffan is an attorney with Steffan & Associates, P.C. in Hillsborough. She can be reached at (919) 732-7300 and firstname.lastname@example.org.