A new HR question arose from the worldwide pandemic: Can employers require COVID-19 vaccines among their employees? The confusion around the legality of COVID vaccination requirements is the latest public health issue of the pandemic.
According to experts, employers will play a large role in ensuring enough people get the coronavirus vaccine.
“We have a long history of vaccine requirements in the workplace. It’s a health and safety rule, just like wearing gloves,” Dorit Reiss, law professor at the University of California Hastings, told NBC News. “Employers have a baseline duty to create a safe environment for their employees and patrons.”
However, many businesses are concerned that if they mandate vaccines, they could potentially be violating the Americans with Disabilities Act (ADA). Thankfully we now have guidance from the federal Equal Employment Opportunity Commission.
Can employers implement mandatory COVID-19 vaccine policies?
The simple answer is yes, according to guidelines released by the federal Equal Employment Opportunity Commission (EEOC). The organization updated its publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to include a section on how requiring employees to get vaccinated interacts with the ADA and other laws.
In the new guidance, the EEOC says that employers can make the vaccine a required condition of continued employment in the work environment, with a few exceptions.
If you plan to administer the vaccine yourself or through a third party, the government requires pre-vaccination medical screenings. Since these screening questions may reveal information about an employee’s disability, they trigger ADA protections. So if you plan on carrying out the required vaccines this way, you’ll have to prove that the questions are “job-related and consistent with business necessity.”
To make sure you’re staying compliant with ADA rules, you’ll need to make sure you have “a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”
It’s best to use a public vaccine provider like a pharmacy or other type of third-party health care service that you do not have on contract to avoid any ADA risks.
Employees with disabilities
If you have an employee who can’t receive the vaccine due to a disability, the EEOC says you must determine if the unvaccinated employee would be a threat to the workplace through a “significant risk of substantial harm” to the health of others that can’t be dealt with through “reasonable accommodation.”
To determine the risk, consider these 4 factors:
- Duration of the risk posed by the employee
- Nature and severity of the potential harm caused
- The likelihood that the potential harm will occur
- The imminence of the potential harm
After you determine the risk of an unvaccinated employee in your workplace, you must then try to figure out a “reasonable accommodation” that allows the employee to be onsite.
If you can’t come up with a reasonable accommodation that wouldn’t cause undue hardship, you can exclude the employee from the workplace. But this doesn’t mean that you can automatically terminate them.
Can the employee work remotely? Do they have available leave they can take? Make sure to check all the options the employee has before deciding to terminate them if they pose a risk to the workplace.
Employees with religious objections
If an employee’s “sincerely held religious beliefs” prevent them from getting the COVID-19 vaccine, the same rules apply as with employees with disabilities. You must determine the risk, as well as if there are any reasonable accommodations that can be made before terminating the employee.
According to the EEOC, you should “ordinarily assume” that if an employee requests an accommodation based on religion, it is based on a sincerely held belief. However, if you have an “objective basis” for questioning the sincerity, the organization says you “would be justified in requesting additional supporting information.”
Other COVID-19 vaccine policy considerations
While you are allowed to require employees to receive the COVID-19 vaccine, a recent survey showed that 13% of Americans do not plan on getting vaccinated. This means you could face pushback from employees who don’t want to follow your policy, with no religious or medical reason.
This means you could risk losing employees over your required vaccine policy. If you’re not prepared to recruit and hire new team members, you might want to consider approaching the issue with a “wait and see” strategy.
Communicate with your employees that you strongly encourage them to receive the vaccine as the government makes it more generally available. You might find that you won’t need a business-wide vaccine mandate.