Now that COVID-19 vaccines are becoming available, employers may be considering whether or not to ask, or even require, employees to be vaccinated. It’s important for employers to consider what makes the most sense for their business, based on contact with the public, level of risk, and other factors, and then institute a clear policy. The EEOC previously issued guidance about employee and employer rights regarding COVID-19 vaccines, which we discussed here, but it’s still critical to consult with an attorney to ensure policies comply with applicable laws.
Can Employers Require Employees to Receive COVID-19 Vaccinations?
Yes, employers can require employees to receive COVID-19 vaccinations, with some exceptions. Mandatory vaccine policies must be job-related and consistent with business necessity. 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.
Policies Will Vary Among Business Industries
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.
Why is Having a Vaccine Policy Important?
Having a clear vaccination policy in place will put employees on notice of the employer’s stance regarding COVID-19 vaccinations. A policy requiring, or strongly encouraging, vaccinations may make employees and customers more comfortable being in, or coming back to, the workplace. Additionally, OSHA requires employers to provide a safe and healthy work environment, and employees may claim that an employer’s failure to implement a policy is a violation of that requirement. Under the current guidance, employer liability for failure to require vaccinations may not be likely, but it’s important for employers to implement appropriate safety protocols.