Now that COVID-19 vaccines are available, many businesses are wrestling with deciding when to resume in-person operations and bring their staff back full-time and how they can provide a safe environment. Employers and workers alike are trying to figure out whether employers can (and should) require the COVID-19 vaccine for employees.
Employers have the ability (with some limitations) to establish health and safety policies for the workplace, and they can generally terminate employees who do not comply, without the risk of liability. However, many have questioned how this general rule applies to an employer’s vaccine mandate.
In December, the Equal Employment Opportunity Commission (EEOC) indicated that employers would be allowed to encourage or require their employees to receive the COVID-19 vaccine. According to the EEOC, “[i]f a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an employee’s impairments or current health status and, therefore, it is not a medical examination.”
What to consider
Some questions to consider before mandating a vaccination:
1. Are you able to comply with current workplace regulations, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII)?
If an employee has a medical condition that makes it unsafe for the employee to be vaccinated, requiring the vaccine could give rise to a claim under the ADA. Also, anyone with a religious objection to the vaccine may be protected under Title VII.
2. Are you able to reasonably accommodate employees with certain disabilities or religious beliefs that preclude them from receiving the vaccine so that they have a safe and adequate work environment?
Accommodations could include remote work, additional personal protective equipment, or working in an area or location that does not require interactions with other employees or clients.The employer cannot fire the employee as long as the employer can reduce or eliminate the threat of harm to the employee.
3. What type of industry and workplace do you have? Does it make sense to require a vaccine due to who employees work with, what they do, and where they are located?
For example, it is common to require healthcare workers to get an annual flu shot. Some argue that the farming and food production industries should also require employees to receive the vaccination. Others advocate for vaccinating grocery store and retail workers.
Although businesses could be subject to lawsuits by employees and customers who claim that they contracted the virus at the business, mandating the vaccination could have similar repercussions, especially if employees experience side effects or complications from the vaccine that could be considered an injury.
It may make sense to adopt a wait-and-see approach: As the vaccine becomes more readily available, are employees getting it of their own accord? Are you at risk of losing valuable employees if you require a vaccine? It is prudent for business owners to understand the culture of their employees (and clients) and to educate staff about the vaccine. As a business owner, you have worked hard to get your business to where it is today and have made it through a pandemic. Now it’s time to adjust to our new normal and get educated about the new types of decisions we face moving forward.
Call us today to set up an appointment: we can advise you about the pros and cons applicable to your particular business so you can implement the best policies and practices for your unique circumstances.
1 (What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, U.S. Equal Employ. Opportunity Comm., https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-law)