Employer’s Requirement to Get Vaccinated

COVID vaccines are, at long last, finally available. Life can now begin to return to normal, but what does normal look like? Employees looking to return to work may face a challenge with employers looking to provide safe work places to their employees, by requiring all in-office or on-site employees to receive COVID-19 vaccinations. Some employers are going so far as to terminate their employees that refuse to get vaccinated. Vaccinations have long since been a controversial topic, with some individuals believing that these vaccinations cause mental deficits, such as autism, despite the CDC’s claims that science does not back this theory (full article available here).

With many refusing to take the vaccine, employers must look to their rights and obligations under applicable law. The Equal Employment Opportunity Commission (EEOC) has provided some answers to workplace vaccination inquiries (Available Here). Employers must be careful to implement policies that are compliant with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (“Title VII”) and other workplace laws. Employers should evaluate the risk that refusing employees pose to the workplace environment and consider creating exclusions for individuals that object to vaccine requirements due to religion or disability. Employers can create general workplace policies that require that employees not pose a direct threat to the health and safety of individuals in the workplace. 

Disabilities

If an employer sets in place vaccination requirement that screens out a disabled employee, 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.

In the event that a “direct threat” is posed, employers need to explore whether a reasonable accommodation can be made, such as allowing employees to work remotely, or if an undue hardship would be imposed on the company.

Religion

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. Employers “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief,” according to the EEOC. “If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.” 

In the event that an employee cannot be vaccinated because of a disability or sincerely held religious belief, and a reasonable accommodation cannot be made, the employer can exclude that employee from physically entering the workplace. Employers should not automatically terminate such employees and need to determine if any other rights apply under the EEO laws or other federal, state and local authorities.

Employer Steps

Employers intending to develop a vaccination requirement should create a written policy. If any employee refuses to be vaccinated, the employer should find out why to ensure that they’re not discriminating against them by enforcing the company policy or terminating them.

Employers should consider the option of encouraging employees to get vaccinated rather than implementing hardline policies. For example, employers may elect to:

• Create education campaigns;

• Make vaccines accessible to employees;

• Cover costs associated with getting the vaccine;

• Provide time off for employees to get the vaccine and recover from side effects; or

• Communicate the benefits of how the vaccines will make the workplace safer.

If you have any questions about the efficacy of such policies or compliance requirements, Contact Us for a consultation today.