Now that the cloud of the COVID pandemic finally seems to be lifting and vaccines are becoming more widely available, many employers are asking whether they can get their workforce “back to normal” by requiring employees to be vaccinated. In response, the Equal Employment Opportunity Commission (EEOC) has recently released its guidance on the question of whether employers can mandate COVID vaccinations for employees. The direction outlines various issues under the applicable federal employment laws.
There are several legal issues to consider, including:
- Does requiring the vaccine violate the Americans with Disabilities Act (ADA) because the vaccine is a prohibited medical examination?
- What are the employer’s obligations to accommodate workers who might be unable or refuse to receive a vaccine?
- Are religious beliefs and other objections relevant?
- How are pregnant employees impacted?
Addressing the first issue, the EEOC has declared that the COVID-19 vaccine is not a “medical examination” under the ADA because the purpose of the shot is not to gather medical information — it is simply to ensure the employee has immunity to COVID-19. For this reason, it is not illegal, per se, for employers to require the vaccine.
It’s important to note that although the vaccine itself is not a “medical examination,” the pre-screening questions necessary for administration may elicit medical information relating to a disability. As such, it is best for employers to have a third party administer the vaccine so that information obtained in pre-screening is not shared with the employer.
As for the second issue: If an employee is unable to receive the COVID-19 vaccine due to an existing medical condition or disability, that does not end the inquiry. Before considering termination, the employer must create an “interactive process” with the employee to determine if there are accommodations that might allow the employee to return to work without the vaccine while minimizing the threat of infection to others. Employers should keep in mind that as vaccinations become more prevalent, there will be less risk of unvaccinated employees posing a risk to others. The employer might also consider whether the employee can work remotely or alter their schedule to limit exposure.
Religious objections must also be considered. If an employee expresses an objection to receiving the vaccine based upon a sincerely held religious belief, the employer must consider this objection and determine whether an accommodation is possible. Pregnant employees may also object to being required to receive the vaccine. Here again, the employer should discuss the issues with the employee and consider accommodations.
Of course, employees may obtain the vaccine on their own, without their employer’s involvement. In those situations, employees may be required to provide proof that they have received the vaccine.
When it comes to the COVID-19 vaccine and returning to work, the key term is “flexibility.” Where possible, employers should work with employees to accommodate medical conditions, religious beliefs, pregnancy, and other issues that complicate an employee’s ability/willingness to be vaccinated. It is only when an employee’s failure or refusal to get vaccinated poses a serious risk to the workplace and no other reasonable alternatives are available that an employer may consider termination as an option.
Of course, not all questions about COVID-19 and the workplace can be answered here. If you still have outstanding concerns or questions, please don’t hesitate to reach out to me directly at firstname.lastname@example.org.