COVID Vaccine Mandates: What Employers Need To Know

The COVID-19 vaccines offer hope that we can get back some sense of normalcy. But they also present questions for employers. Here are some things employers should consider before requiring employees to get the vaccine.

Can employers require the COVID-19 vaccine?

Yes, generally. No federal Equal Employment Opportunity laws stop employers from requiring employees to get the COVID-19 vaccine.

But there are exceptions. Employees may not want to get the vaccine due to a disability under the Americans with Disabilities Act (ADA) or a sincerely held religious belief protected by Title VII of the Civil Rights Act. If an employee raises either objection, employers must:

• Conduct a personalized assessment of the employee to decide if by not taking the vaccine, the employee would cause a “direct threat” to the safety of herself or others in the workplace.
• If this conclusion cannot be reached based on the assessment, the employer may not require the vaccine. But if the employer can reach this conclusion, it must see if it can make a reasonable accommodation for the employee without posing an undue hardship on the employer. These could include masking, isolation, remote work or changing shifts.
• If it can find an accommodation, it must do so. If there is no feasible accommodation, the employer may exclude the employee from the workplace.
• Before termination, the employer must look into whether the employee could work remotely, work different hours or take leave.

What should employers address before making a workplace vaccination policy?

• Vaccination pre-screening questions. While giving the vaccine is not a medical exam, pre-screening questions could fall under the ADA’s rules against questions likely to prompt information about a disability. All pre-screening questions should be job-related and consistent with business necessity. Asking for proof that an employee got the vaccine is not a disability-related inquiry under the ADA. Still, employers should advise employees not to give medical information as part of showing proof of the vaccine.
• Private medical information. The ADA requires employers to keep employee medical information it obtains through a vaccination program confidential.
• Collective bargaining agreements, if dealing with unions. The agreement should be analyzed before a decision to require vaccines is put in place.
• Policy consistency. To avoid discrimination claims, employers should apply and enforce vaccination policies consistently among similarly situated employees. Employers should also decide if they will require vaccines for some types of employees but not others. This could depend on factors like which employees deal with the public and which employees cannot easily isolate.
• Clear, written vaccination policies. Effective communication should help reduce workplace tensions, if any, involved with the policy.
• Manager training on employee morale. Employees may have opposing views on the need for vaccines. Managers and supervisors should be trained to deal with these views.
• Possible side effects. Certain medical studies show a small percentage of individuals who get the vaccine may suffer side effects. Employers should have a plan to handle this.
• Wellness programs. Employers may want to encourage vaccination through incentives in a wellness program.

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