Can I Require My Employees to Receive the COVID-19 Vaccine?

By: Meridian Law

Photo by: CDC on Unsplash

As Americans return to the office and more people become eligible to receive the COVID-19 vaccines, employers will want to take steps to prevent future business closures or further complications related to COVID-19. One of the best ways to do this may be to have an entirely vaccinated workforce. Many employers may be wondering if they can or should require their employees to receive the Covid-19 vaccine when it becomes available to them.

While the answer is not as clear as most would like, in general, there is no strict prohibition on requiring employees to receive a vaccine. However, there are many laws and regulations that employers need to navigate to protect themselves from liability.

The Americans with Disabilities Act (ADA) and OSHA

Some employees may object to receiving the vaccination because they have a medical condition that renders them immunocompromised or otherwise prohibits them from receiving the vaccine. If an employer requires its workers to get vaccinated, but a worker has a covered disability under the ADA that would prohibit her from getting the shot, the employer needs to provide that worker with a reasonable accommodation. A “covered disability” means any condition, mental or physical, that substantially interferes with the employee’s daily activities, including work, eating, breathing, walking, etc.  Reasonable accommodations will be unique to each specific situation and depends on the duties of the worker and the nature of the specific business. Employers and employees should engage in an interactive process in determining the accommodation and document every step of this process. 

Often, a reasonable accommodation could be something as simple as providing the employee with a mask or other PPE. Or it could be reassigning the employee to a position in which he or she is not likely to interact with vulnerable populations. Either way, you should consult with an attorney or HR professional before making this decision. 

Similar to the Americans with Disabilities Act, OSHA has clarified that employees who refuse vaccinations because of a reasonable belief that he or she has a medical condition that creates a real danger of serious illness or death are probably protected under the OSHA law pertaining to whistleblower rights.

Should employers take the employee’s word for it that he has a covered disability? No. Employers can require medical documentation. However, employers should make sure to take adequate measures to protect their employees’ privacy when requesting medical proof of a covered disability. 

If employers are administering the COVID-19 vaccine at work, they will have to ask employees certain questions to make sure the employee can receive the vaccine without complications. The EEOC has indicated that this could implicate the ADA’s provision on disability-related inquiries. Therefore, if employers are going to administer the vaccine themselves, they need to make sure that the pre-screening questions are job-related and consistent with business necessity. In other words, the employer needs to have a reasonable belief that the employee who does not answer the screening questions and does not get the vaccine will pose a direct threat to the health or safety of others. 

TITLE VII – Religious Beliefs

Title VII of the Civil Rights Act prohibits discrimination against employees based on their sincerely held religious beliefs. Accordingly, employees who have sincere religious objections to vaccinations cannot be required to receive a shot as a condition of their employment and cannot be terminated in retaliation for refusal to receive one. 

This does not mean that employees can declare, “I belong to x religion, and I don’t believe in vaccines.” Their belief must be sincerely held. However, while there are several ways to gauge whether a religious belief is sincerely held, employers who opine on the sincerity of their employees’ faith will often find themselves defending that decision in front of a judge. The best practice instead is to provide the employee with a reasonable accommodation, as discussed above. 

Workers’ Compensation

Mandatory vaccinations could also affect an employer’s workers’ compensation risk. Some people have reported complications arising from the vaccine. If an employee is required as a condition of employment to receive the vaccine and she suffers complications, that employee may assert this complication is covered by workers’ compensation. Employers should consult with their workers’ compensation insurance broker on these issues.

Other Issues

Employment-related issues may be specific to a particular industry or company, and employers should contact an attorney to work through each specific situation. For instance, if workers are unionized, a collective bargaining agreement may impose restrictions on mandatory medical procedures, including vaccinations. If an employee has signed an employment agreement, the terms of that agreement may dictate the reasons he may be terminated or disciplined, which may not cover vaccinations or medical procedures. Because every situation is unique, employers should always consult with their attorney or HR department before making any specific personnel decisions. 

Best Practices

First, it is imperative that employers maintain the confidentiality of any medical information received from any employee, including when and whether each employee receives a vaccine. Do not publish a list or otherwise disclose the identities of employees who are vaccinated or not vaccinated. Keep all screening survey responses confidential and take appropriate measures to ensure that confidential medical information cannot be leaked. 

Additionally, employers must inform employees about the “significant known and potential benefits and risks” of the use of the vaccine, and clearly inform them of the consequences of their refusal to accept the vaccine. 

Instead of requiring workers to receive the vaccine, many employers are incentivizing employees to receive it through benefits like paid time off or gift cards for a small amount. However, remember that if an employee cannot receive the vaccine due to a covered disability or sincerely held religious belief, the employer will still need to compensate or provide the incentive to that employee to protect against a discrimination claim. 

Most importantly, employers should establish clear policies regarding employees receiving the vaccine. If the employer decides to make vaccination mandatory, it needs to make it clear to employees, preferably in writing, that getting the vaccine is required and that employees who refuse could be terminated. Employees should also be given, again in writing, a clear path to request a reasonable accommodation based on disability or sincere religious belief. Before implementing any type of vaccine requirement, the employer should establish a plan on how to provide accommodations if they are reasonably requested. If an employee still refuses to get vaccinated, refuses a reasonable accommodation, or does not have a legally valid reason for refusing, the best practice is to repeat the vaccination requirement and the consequences of failure to comply, and give the employee a chance to change his mind before terminating him.

Every situation is different and vaccinating employees can be an incredibly complicated issue. There are hundreds of situations in which employers could face liability if they do not take the right precautions when making these decisions. If you have questions about requiring or incentivizing your employees to receive the Covid-19 vaccine, call the attorneys at Meridian Law.