The arrival of the COVID-19 vaccine foretells a return to normalcy (or some semblance of normalcy) in the workplace and beyond. As the vaccine becomes more widely available, many employers are grappling with the question of whether they can require employees to get vaccinated.

The answer is yes, but with some limitations.

Essentially, employers can require employees to receive the COVID-19 vaccine but must comply with the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), and other federal, state, and local employment laws.

COVID-19 Vaccine Requirement

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance to address vaccination issues. The EEOC confirmed that the COVID-19 vaccine does not constitute a “medical examination” under the ADA, which is significant because employers must show that a “medical examination” or “disability-related inquiry” is “job related and consistent with business necessity.” Furthermore, an employer can require an employee to show proof of receipt of a COVID-19 vaccine without implicating the “job related and consistent with business necessity” standard.

However, employers should be cautious about pre-vaccination questions to employees because such questions could constitute “disability-related inquiries,” which would necessitate a showing that if the employee does not receive the vaccine, he will pose a direct threat to the health or safety of himself or others. This showing is not required if (1) the employer’s vaccination program is voluntary, or (2) the employee receives the vaccine from a third party that does not have a contract with the employer.

An employer might have to make an exception to a COVID-19 vaccine requirement for an employee with a disability or a religious objection.

Disability

Under the ADA, an employer can have a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”

If an employee objects to getting the COVID-19 vaccine based on a disability, the employer must evaluate whether an unvaccinated employee poses “a direct threat to the health or safety of individuals in the workplace.” This fact-specific evaluation is based on four factors:

(1) duration of risk, (2) nature/severity of potential harm, (3) likelihood of harm occurring, and (4) imminence of potential harm. In its recent guidance, the EEOC stopped short of saying that an unvaccinated employee in the workplace constitutes a direct threat – likely because the evaluation is so fact-specific.

Even if an employer determines that an unvaccinated employee poses a direct threat, the employer cannot take any adverse action against the employee (e.g., termination of employment) unless no reasonable accommodations are available that would eliminate or reduce the risks (e.g., allowing the employee to work remotely) without imposing an undue hardship (defined as “significant difficulty or expense”) on the employer. Again, this is necessarily a fact-specific inquiry.

Religious Objection

Title VII requires an employer to accommodate an employee’s sincerely held religious belief unless doing so would cause an undue hardship on the employer, which is defined as more than a “de minimis” (very small) cost or burden on the employer (a lower standard than the ADA’s undue hardship standard). The EEOC emphasized in its recent guidance that an employer should generally assume that an employee’s objection to receiving the COVID-19 vaccine on religious grounds is based on a sincerely held religious belief, although the employer may request supporting information if the employer has an objective basis for questioning either the religious nature of the objection or the sincerity of the employee’s belief.

It is worth noting that an employee’s generalized objection to receiving the COVID-19 vaccine (e.g., based on social or political views) does not implicate Title VII because having an “anti-vaccine” viewpoint is not a protected class under Title VII.

Enforcement

If an employee cannot (or will not) receive the COVID-19 vaccine because of a disability or religious belief and there is no reasonable accommodation possible, then the employer can exclude the employee from the workplace, which may require termination of employment.

Practical and Legal Considerations

Although an employer may legally require employees to get the COVID-19 vaccine, with possible exceptions based on disability and religion, an employer should consider the practical and legal implications of imposing such a requirement.

As a practical matter, employers should weigh the benefits of having a vaccinated workforce against the costs associated with requiring employees to be vaccinated. A Pew Research poll conducted in November 2020 found that 39% of American adults would “probably” or “definitely” not get the COVID-19 vaccine. Accordingly, employers should expect opposition from their workforce to mandatory vaccination programs.

In some cases, it may be preferable to encourage and incentivize employees to get the vaccine, rather than require vaccination as a condition of continued employment. For example, employers could encourage voluntary vaccination by:

• Educating employees about the COVID-19 vaccine, including effectiveness, safety, possible side effects, and how to get it;
• Covering any costs associated with getting the vaccine;
• Providing a financial incentive to employees to get the vaccine; and/or
• Providing extra paid time off for employees to get the vaccine and recover from any side effects.

Employers should also consider the potential legal consequences of requiring employees to be vaccinated. Serious adverse reactions to the COVID-19 vaccine are possible but rare. An injury or illness resulting from an employer-required COVID-19 vaccine would likely be covered by workers compensation insurance, although employers should consult with their carriers regarding coverage. To the extent that an employee could assert a negligence claim against his/her employer for a vaccine-related injury or illness, such claim would be stronger if the employer required rather than encouraged vaccination.

Conclusion

Whether an employer requires or simply encourages employees to receive the COVID-19 vaccine, it is important to develop a clear policy and plan for implementing the policy.

If you have questions or need assistance related to COVID-19 vaccine policies or any employment law matter, please contact Maureen Carr at mcarr@beankinney.com.

This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the authors and are not necessarily the views of any client.