Can an employer require COVID-19 vaccinations?
Recent days have brought encouraging news about the development of COVID-19 vaccines. The prospect of vaccines being available in early 2021 has caused employers to begin considering whether they will require employees to obtain a COVID-19 vaccination as a condition of employment. For employers, reaching a decision on a vaccine policy triggers practical and legal considerations.
As a general rule, an employer has the right to set reasonable health and safety policies for its workplace. For some, this may include requiring employees to be vaccinated for the coronavirus. A mandatory vaccination policy can be particularly appropriate for health care employees, workers in nursing or assisted living facilities, or businesses whose employees have extensive face-to-face contact with the public. As the pandemic worsens, we may even see COVID-19 vaccine requirements instituted by regulation or law for targeted industries, such as meatpacking facilities or food service.
Notably, the Equal Employment Opportunity Commission has recognized the ability of companies during the pandemic to be more proactive regarding medical inquiries and testing in the workplace. However, when an employer requires its workforce to be vaccinated, it should anticipate that some workers will ask for an exception based on either a medical condition or religious belief. That’s where the Americans with Disabilities Act and Title VII’s religious discrimination protections come into play. Both federal laws require employers to engage in the interactive process to see if an accommodation can be made.
If an employee requests an exception based on the belief that the vaccination would adversely affect their health, the employer should first ask the employee to provide satisfactory medical confirmation that they have a medical condition that prevents them from getting the vaccine. If the employer receives medical confirmation, then it should engage in the interactive accommodation process.
As for a religious exception, Title VII requires employers to accommodate an employee’s “sincerely held religious beliefs.” This does not extend to philosophical or political beliefs, so an employer may inquire into the basis for an employee’s opposition to a vaccination policy. If an employee requests an exception based on their religious beliefs, the employer should engage in an interactive religious accommodation process.
Deciding whether to approve an exception should be made on an individualized, employee-by-employee basis. Interactive means a two-way discussion with the employee to consider whether their request is reasonable, does not cause an undue hardship to the organization, and does not pose a direct threat to themselves or others.
Employers should start by determining whether any law or regulation requires that employee to be vaccinated by virtue of the company’s industry or their job responsibilities. Ask the employee – and their health care provider, if applicable – for suggestions on how the employer can accommodate their request, and then discuss and consider whether you can accommodate the employee’s refusal to be vaccinated while still maintaining the health of your workplace through other measures. Examples include using alternative vaccine formulas, increasing the use of PPE, enforcing stricter social distancing, having the employee work remotely or at a more isolated location, reassigning the worker to a job requiring less contact with others, or providing a temporary leave of enhance.
The decision to adopt a mandatory vaccination policy can be controversial and difficult. I wouldn’t be surprised to see regulations or guidance from the federal government in the near future that specifically address how and when employers may adopt such a requirement. If an employer decides not to require vaccination, it may nonetheless educate its employees about the value of the vaccine and encourage vaccination. Likewise, an employer is free to facilitate the vaccination process for members of its workforce and their families.