Published by Ask General Counsel on InsideNova, 4/13/2021

Can employers require employees to receive COVID-19 vaccinations?

Yes, with some exceptions and if the mandatory vaccine policy is job-related and consistent with business necessity.

The Equal Employment Opportunity Commission (“EEOC”) issued new guidance that preemptively answers some questions that may arise now that COVID-19 vaccinations are beginning to be administered. According to this guidance, employers may require employees to get a vaccination. If employers believe that unvaccinated employees would create a direct threat because unvaccinated individuals may expose others to the virus at the workplace, they may require employee vaccinations.

However, exceptions must be made for employees with disabilities or sincerely held religious beliefs. Under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act, if an employee is unable to get a vaccine due to a disability or religious belief, and the employee can perform services if given a reasonable accommodation without causing undue hardship to the employer, then that reasonable accommodation may be required, rather than terminating the employee.

In such circumstances, it is important that the employer engage in an “interactive process” with the employee.  It is also important that the employer not take adverse employment actions against the employee that could be seen as retaliation.

So, if an at-will employee refuses to obtain vaccine pursuant to an employer’s mandatory vaccine policy, and the employee does not have disability or religious grounds to not take the vaccine, the employee could be terminated for such refusal.

If employers choose to require employees to get COVID vaccinations, it is recommended that the employer work with an attorney to develop a COVID-19 Vaccine Policy customized for your business.

The same COVID-19 policy will not work for all businesses. Businesses with employees interacting with the public on a regular basis will have a better argument for the necessity of a mandatory vaccine policy than a small office with no outside contact. If there is a greater likelihood that nonvaccinated employees will put fellow employees and customers at risk of contracting the virus, a “direct threat” is more likely to exist and warrant a mandatory policy. However, for many employers, a policy that encourages employee vaccinations, but doesn’t require them, may be more appropriate and easier to implement.

For employers, it may be beneficial to require employees to get the vaccines from pharmacies or personal health care providers. If an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, the ADA and GINA restrictions would not apply to the pre-vaccination medical screening questions. The EEOC also notes that employers that require proof of vaccination should advise employees not to provide any medical information as part of the proof.

For more information, please see:  Client Alert: EEOC Guidance regarding COVID Vaccine and Employers should have a Covid-19 Vaccine Policy.

If you have additional questions, please contact Merritt Green, who leads General Counsel, P.C.’s Employment Practice, at mgreen@gcpc.com.

If you have legal issues you would like to see answered, please email us at AskGC@gcpc.com.

Merritt Green is founder of General Counsel PC of McLean, a full-service law firm providing comprehensive legal services for businesses ranging from start-up to multi-billion dollar organizations. He can be reached at mgreen@gcpc.com.