As an Employer, Can I Require Employees to get a COVID-19 Vaccination?
The question of whether or not you can require your employees to get a COVID-19 vaccination is a tricky one, and to answer it we must turn the Equal Employment Opportunity Commission (EEOC) for guidance.
According to the EEOC, “Employers may encourage or possibly require COVID-19 vaccinations, but policies must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII) and other workplace laws.”
There are, however, exceptions. If your employee objects on religious grounds, or has a disability, they may have a legitimate excuse for not getting vaccinated. Unions can come into play as well. If the union does not require vaccinations, you may not be able to enforce that requirement either.
If your employee does qualify for an exemption, you cannot automatically terminate them. You can prevent them from entering the workplace or jobsite physically. Accommodations for working from home or other arrangements can be made.
Your Rights with Employee Refusal
An employee may refuse to get a COVID-19 vaccination. If this is the case, employers do have options. Under the Americans with Disabilities Act (ADA), an employer can mandate a workplace policy that an employee shall not post a direct threat to the health or safety of other employees in the workplace. It is best to put this policy in writing. What needs to be determined, however, is whether the lack of vaccine would post a direct threat or significant risk that could not be reduced or eliminated with alternative accommodation such as remote working or a leave of absence.
The four factors the Equal Employment Opportunity Commission (EEOC) defines are: 1) the risk duration; 2) the nature and severity of potential harm; 3) the likelihood that harm could potentially occur; and 4) the potential harm’s imminence.
Handling Religious Exemptions
An employer is required to accommodate an employee’s sincere religious belief, observance or practice under Title VII, unless an “undue hardship” would be caused to the business. An undue hardship could be defined by the courts as more than a very small cost or burden.
As an employer, you should take an employee’s religious belief or practice exemption request seriously. If you have an objection or a serious doubt about their sincerity, you are justified in requesting supporting evidence or information.
Disability or Medical Conditions Exemptions
When an employee cannot be vaccinated due to a disability or medical condition, an employer must be careful to stay within the employee protections under the ADA. It states that employers cannot
discriminate against these employees and cannot require the employees to undergo a medical examination as a condition of their job, unless the employer can demonstrate that the testing is necessary to confirm that employee’s ability to do their job.
Part of what makes it tricky to try to require employees to get a COVID-19 vaccination isn’t the shot itself, it’s the pre-screening questions that may require an employee to disclose a disability, which is in violation of the ADA.
Related: See more on COVID-19 and EEO Laws.
Requiring a vaccination may depend on the type of industry you are in or the population you serve. Healthcare and other occupations that interact with customers and clients in vulnerable populations need to have their employees vaccinated, but may not be able to require vaccinations.
Remember also that it is unlawful to disclose any accommodations made to an employee requesting a religious, medical or disability exemption or accommodation.
Offer COVID-19 Vaccination Incentives
Instead of requiring COVID-19 vaccinations, you may want to consider incentivizing employees to get vaccinated. You can:
- Cover the costs of the vaccine
- Provide reward incentives for proof of vaccination, like a bonus or time off for recovery of any side effects
- Make it easy to obtain the vaccine
- Create an employee vaccination campaign and educate employees on the benefits of the vaccine to themselves and their workplace
- Lead by example
Want to Know More About Whether if You Can Require Employees to Get a COVID-19 Vaccination? Contact Benefit Providers.
For decades, we’ve been assisting employers with their benefits administration programs and helping them to find answers on questions like whether they can require employees to get a COVID-19 vaccination. If you have questions or would like to look at the benefits your company can offer, contact Benefit Providers/ECCA Payroll Services.
