With how disruptive the COVID-19 pandemic has been for businesses around the world, employers may be eager to get their workforce back to “normal” as soon as possible — and yet that desire forces new questions about vaccinations.
But when you’re dealing with a legal issue that has never been addressed before, knowing where to begin can feel overwhelming.
Fortunately, the attorney-editors at Practical Law monitor updates and developments so that you don’t have to. They’ve compiled answers and resources for some of the most common questions regarding COVID-19 vaccinations and the workplace. There are a variety of factors to consider in the context of mandatory workplace vaccinations, and employers should carefully consider these issues before deciding on a specific policy approach.
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Can employers require employees to get vaccinated?
Guidance from the Equal Employment Opportunity Commission (EEOC) indicates that a mandatory vaccination program is not prohibited but must account for legal nuances. In addition, while case law is focused more on vaccine mandates from the government than from the private sector, that case law has largely upheld mandatory vaccine programs against civil liberties challenges.
Most importantly, employers must understand and comply with their duty to accommodate an employee’s sincerely held religious belief or disability. Employers also need to be aware of the latest guidance with respect to accommodations and the interactive process to ensure they are complying with their legal obligations.
Even if employers can require employees to get vaccinated, should they?
Although there are definite benefits to requiring employees to get vaccinated, there are also real risks that must be addressed by employers before making any major decisions, including the ones listed below.
Disability accommodations and vaccines
Under the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations to qualified employees with a disability, unless the employer can demonstrate the accommodation would create an undue hardship. Reasonable accommodation may include appropriate adjustment or modifications of employer policies, including requirements imposed by a mandatory vaccination policy.
As with any request for an accommodation because of a disability, the employer should engage with the unvaccinated employee to identify potential workplace accommodations. The ADA creates an exception to employers’ obligations in the event of an undue hardship, which may include hardships associated with accommodation costs, finances of the organization, impact of the accommodation on company operations, among other factors.
While we are just starting to see challenges to COVID-19 vaccine mandates, there have been rulings on other vaccine mandates in healthcare and government. Still, because the challenges of COVID-19 are so new, we are sure to see new cases and new precedents, and Practical Law continues to follow the issue closely.
Vaccines and religious accommodations
Employees may be entitled to another kind of reasonable accommodation in the mandatory vaccine context as well. Under Title VII of the Civil Rights Act of 1964 (Title VII), employers must provide accommodations for an employee’s sincerely held religious belief when it comes to vaccine requirements. Again, the law does account for exceptions related to the employer’s undue hardship.
The definition of undue hardship under Title VII is decidedly more lenient for the employer, requiring that it only pose more than a de minimis cost on business operations.
On the other hand, defining a “sincerely held religious belief” can be notoriously difficult, and courts have reached a wide range of conclusions on what is a sufficient religious belief under Title VII.
Vaccinations and medical questions under the ADA
Normally, the ADA largely bans disability-related inquiries from employers to their employees. However, the EEOC has specific vaccination guidance that states that requiring vaccination does not qualify as a medical exam. Employers must use caution, though, as the EEOC also states that an employer’s use of pre-screening questions that ask whether the employee has been vaccinated may inadvertently constitute a disability-related inquiry. Employers must then be able to demonstrate the business necessity of these questions.
Wage and hour vaccine considerations
Under federal law, employees may be entitled to compensable work time for their time spent waiting for and receiving a vaccine, if it is at the direction of the employer. Failure to adhere to wage and hour requirements is often a very expensive mistake, so it’s vital to get it right.
Additional considerations regarding vaccines
Unionized employers may also have to consider collective bargaining agreements for any additional obligations owed to union members.
Also, employers that administer vaccinations to employees in the workplace, either themselves or through a third-party medical provider, should determine whether any alleged injuries sustained from the vaccination will trigger workers’ compensation insurance coverage. States are beginning to address this issue, and employer obligations may vary from state to state.
Can employers ban employees from the workplace if they refuse to get vaccinated?
Yes, according to updated EEOC guidance, but employers should not be too quick to terminate employment. Working with employees to address concerns and to ensure legal compliance is a better approach.
Once the on-site workforce is fully inoculated, do employers still need to require safety measures?
Yes, vaccinations do not exempt employers from complying with state and local regulations concerning COVID-19 and public health.
Get the expert guidance you need to provide the expert guidance they need
Of course, COVID-19 vaccination is an ever-evolving issue. The best way to stay on top of all of it is to let someone else do it for you. Let Practical Law’s over 300 full-time attorney-editors keep you updated on COVID-19 employment law and developments.
This post was based on a Practical Law Labor and Employment expert Q&A with Richard Warren of Miller, Canfield, Paddock, and Stone, PLC on what employers need to know about the 2019 novel coronavirus (COVID-19) vaccine and the workplace.