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Should employers consider a COVID-19 vaccination mandate?

As the COVID-19 vaccine becomes more widely available, many employers are asking whether they can require employees to receive the vaccination.

The short answer is yes – subject to some important exceptions and considerations. It may be worthwhile to note that in a recent survey, only 6 percent of respondents said their company will mandate the vaccination.

The U.S. Equal Employment Opportunity Commission recently published guidance for those employers considering a vaccination requirement.

While employers may choose to encourage or even require the vaccine, the EEOC guidance makes clear that employers need to consider exemptions for certain employees, including those with religious objections, pregnant workers and employees with disabilities. In addition, any vaccination policy must comply with existing workplace laws, such as the Americans With Disabilities Act and Title VII of the Civil Rights Act of 1964.

ADA considerations

Under the ADA, employers may require that an individual “not pose a direct threat to the health or safety of individuals in the workplace,” and in March of last year, the EEOC declared that COVID-19 was indeed considered a direct threat. The ADA prohibits employers from making disability-related inquiries and requiring examinations of current employees unless they are “job-related and consistent with business necessity.” The new EEOC guidance considers vaccinations in the context of this general rule.

The new EEOC guidance states “if a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status, and, therefore, it is not a medical examination.”

However, the EEOC also states that the required pre-screening questions for a vaccination are disability-related inquiries and must be job-related and consistent with business necessity. If the employer’s vaccination program is voluntary, answering the screening questions also must be voluntary. However, asking for or requiring an employee to show proof of receipt of a COVID-19 vaccination is not considered a disability-related inquiry.

If an employer decides to implement a COVID-19 vaccination policy, there are several issues to consider before disciplining or terminating an employee who cannot be vaccinated because of a disability. First, employers must show that an unvaccinated employee would pose a direct threat. EEOC states that a “conclusion that there is a direct threat would necessarily include a determination that an unvaccinated individual will expose others to the virus at the work site.” Second, the employer must explore a reasonable accommodation that would reduce or eliminate the risk of the unvaccinated employee to other employees. For example, the employer should consider whether the employee can work remotely or work on-site with enhanced protective gear.

Title VII considerations

The EEOC guidance states that the existing Title VII standard, which requires an employer to provide reasonable accommodation for an employee’s sincerely held religious belief, practice or observance, unless it would impose an undue hardship on the employer, applies to employees who refuse the COVID-19 vaccine on religious grounds.

According to the EEOC, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” Employers may establish that an accommodation for a religious belief, practice or observance poses an undue hardship if the accommodation imposes more than a de minimis cost or burden on the employer.

Incentives

Recent news reports suggest that several national employers are paying a bonus, for example $100, to incentivize their employees to get vaccinated. The legality of this approach remains unclear. Current ADA regulations limit the types of incentives that can be provided in employer wellness programs. It appears certain that the new administration will address this in the coming weeks.

In summary, employers can mandate COVID-19 vaccination, but that doesn’t necessarily mean they should. Employers should give serious consideration to the implications of a vaccine mandate, the impact on their workforce and the possible increased risk of discrimination claims.

Employers may be better served by educating employees on the benefits of vaccination, providing easy access to the COVID-19 vaccine and incentivizing employees to be vaccinated. As with any other employment requirement, employers should have a written policy in place if they intend to require COVID-19 vaccination for employees.

Employers should consult with their employment law attorney as to whether or not a mandatory vaccination policy is appropriate for their business.

February 18, 2021

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