Can I Require My Employees to Get Vaccinated?
With COVID-19 vaccines readily available to most Americans and more and more employees returning to the workplace, employers are being forced to decide what their vaccination policies will be for workers. One of the primary components of this decision-making process will involve understanding what employers can legally require their employees to do.
Avoiding Discrimination in Mandatory Vaccination Programs
A major concern for employers implementing vaccination policies is ensuring that workers are not illegally discriminated against based on their vaccination status. Fortunately, the Equal Employment Opportunity Commission (EEOC) has provided employers with substantial guidance on this issue by answering common workplace vaccination questions and explaining how to encourage or require vaccines while remaining in compliance with workplace anti-discrimination laws, such as the Americans with Disabilities Act (ADA) and the Rehabilitation Act, the Genetic Information Nondiscrimination Act, and Title VII of the Civil Rights Act of 1964 (Title VII).
Employers that intend to require workers to be vaccinated should develop written policies to require an employee’s reasoning for vaccination refusal before termination taking another adverse employment action. For instance, if an employee cannot get vaccinated due to a disability or a religious belief, they are entitled to legal protections and must be offered reasonable accommodation. However, if the worker is simply opposed to getting a vaccine, there is no requirement for accommodation.
According to the EEOC, employers may legally require workers to receive vaccinations as long as reasonable accommodations are made for individuals who cannot get vaccinated for COVID-19 due to a disability or a sincerely held religious belief, practice, or observance. Title VII and the ADA both require an employer to provide reasonable accommodations in these situations unless providing an accommodation would pose an undue hardship on the operation of the employer's business.
Disability Discrimination
Under the ADA, employers are legally permitted to implement workplace policies that include "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace." As part of this policy, employers may require COVID-19 vaccinations for all employees who are physically entering the workplace.
However, in the case of employees or candidates who cannot receive a vaccination due to a disability, the employer must be able to show that unvaccinated employees would pose a "direct threat" because of 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."
When determining if this “direct threat” exists, employers should consider the following factors:
What is the duration of the risk?
What is the nature and severity of the potential harm?
How likely is the potential harm to occur?
Is the potential harm imminent?
When it is decided that a worker who cannot obtain a vaccination due to a disability poses a direct threat, the employer must then determine if a reasonable accommodation, such as permitting the employee to work from home, is feasible.
Religious Discrimination
Title VII requires employers to make reasonable accommodations for employees who cannot get vaccinated due to a sincerely held religious belief, practice or observance. However, an accommodation does not need to be made if it would cause an "undue hardship" on the employer's business. An undue hardship is defined as an accommodation that would place more than a minimal cost or burden on the employer.
The definition of religion under Title VII is all-inclusive and protects religious beliefs, practices, and observances that may not be common or familiar to the employer. For this reason, the EEOC recommends that employers assume that a request for a religious accommodation is based on a sincerely held religious belief unless the employer has an objective reason for questioning the worker's sincerity. In these cases, employers would be justified in requesting additional information from the worker about their need for religious accommodation.
If an employee's religious beliefs prevent them from getting vaccinated and there is no reasonable accommodation available, employers can prohibit them from physically entering the workplace. However, there may be other rights at play that could prevent the termination of employees for not getting vaccinated. Therefore, employers should always consult with an experienced employment law attorney before taking any adverse employment actions against an individual who cannot be vaccinated.
Encouraging and Incentivizing Vaccinations
Employers can avoid discriminating against an employee’s sincerely held religious beliefs or disability when implementing and executing a mandatory vaccination policy by following the guidance above, per the EEOC. Additionally, some employers may consider implementing programs and incentives to encourage vaccinations amongst vaccine-hesitant employees and reduce the barriers and burdens to obtaining vaccinations amongst their staff. Employers are permitted to encourage and incentivize vaccinations whether they choose to implement a mandatory vaccination policy or not.
Some steps employers can take to encourage vaccinations include:
Providing free on-site vaccinations
Providing convenience regarding obtaining a vaccine
Paying for any costs associated with vaccinations
Running vaccination-education campaigns
Offering incentives to workers who get vaccinated
Offering paid time off for vaccination and recovery
If you have any additional questions, feel free to reach out to us!