Can Employers Require Their Employees to Get Vaccinated?
February 26, 2021
Among the most common hot topic items is, of course, if employers can legally require their employees to get the COVID-19 vaccine. The quick answer is: Yes, but prepare for exceptions.
Due to the direct threat caused by the COVID-19 pandemic, we may see some updated state and federal guidance in the near future – but for right now, we have to rely on the existing rules (from 2009) related to regular influenza vaccine requirements. Generally, yes, the Company can implement a mandatory policy which requires employees to be vaccinated. But you will need to prepare to receive employee requests for accommodations (and exemptions) to the vaccine requirement – especially if your company has more than 15 employees. Once you have 15 or more employees, the Company is subject to the Americans with Disabilities Act (ADA) and the anti-discrimination laws under Title VII of the Civil Rights Act.
The most likely requests for accommodations would be for sincerely-held religious beliefs or for medical reasons such as an allergy to vaccine ingredient, or other medical complications. Such accommodations will need to be reviewed on a case-by-case basis and the specific details of each request will be relevant. As for the sincerely held religious beliefs – this isn’t a very high bar for an employee to meet, but it has to be a legitimate religious belief. It cannot be social, political, or personal in order to qualify as a sincerely-held religious belief. Even so, our courts have given a significant amount of leeway in this area – for example, courts have determined that veganism may constitute a religion when an employee protested against getting a flu vaccine containing animal ingredients such as eggs.
Consider a multi-faceted approach to try and mitigate as much risk as possible:
- Will the Company’s insurance policy cover the cost of vaccines, once they are available? Would it be possible to make vaccines available onsite at certain times during the workday? The more accessible and affordable the COVID-19 vaccines are to your workforce, the more likely they will be to get vaccinated. You could set a deadline for vaccinations, and then will need to consider the company’s policies for handling any non-compliance.
- Evaluate the employee positions and see if the vaccine policy needs to apply to certain groups: i.e., those who work in high-risk work locations where it is not possible to socially distance or stagger work shifts so fewer people are on site, etc.
- The Company can implement other requirements such as a mandatory face covering policy (unless there is an ADA-reason exempting an employee from wearing a face mask), increased use of PPE, modification of other duties to remove at-risk activities, etc.
- We are seeing news reports of several large employers who are offering bonus payments or some PTO hours to employees who get vaccinated for COVID-19. Depending on your workforce, this could be an effective strategy to encourage more employees to voluntarily get vaccinated with a small incentive, rather than making it a rule for employment. It is important to consider the legality of implementing a COVID-19 vaccine incentive program for employees, as the details remain in flux. On February 12, 2021, the EEOC withdrew its January 2021 rules regarding employee wellness programs and the next steps are now “under consideration” by the EEOC.
And as a general reminder, the Company is not required to grant all requests for accommodations. Accommodation requests are heavily fact-specific, but it’s worthwhile to keep the following in mind:
- If an employee requests a religious accommodation to a vaccine requirement, the Company still needs to review the details to determine whether it would cause an undue burden to the Company to provide the accommodation.
- If an employee requests an accommodation to a vaccine requirement due to disability, the Company needs to determine whether the exemption would create a direct threat to the employee, his or her coworkers, etc.
Employers who would like to see their workforce vaccinated may find that the most effective way to do so is to encourage – rather than mandate – vaccination. The CDC has produced helpful educational resources regarding vaccination in the workplace.
Do you have procedures in place for accommodation requests? If this area needs attention, contact me to discuss options today!