Can Employers Require the COVID-19 Vaccine?

Many employers may be wondering if they can instruct their employees to get the forthcoming COVID-19 vaccine. The answer is somewhat complicated. Employers can request proof of immunization for employment, but there are several exceptions.

Exceptions and Limitations

Employers requiring proof of vaccinations from workers is not unheard of. For instance, mandatory vaccinations are generally required in healthcare and education fields. This requirement is meant to protect vulnerable populations and create a safe work environment. Thus, the U.S. Occupational Safety and Health Administration (OSHA) allows employers to require vaccinations if they wish. However, OSHA advises employers to be aware that some employees can be exempt from a vaccination requirement. These protections are given by the American With Disabilities Act (ADA) and the Civil Rights Act of 1964 (“Title VII”). The reasonings can be narrowed to:

● Health concerns where the vaccine could be harmful due to an underlying condition

and

● Religious or philosophical beliefs that prohibit the individual from taking a vaccine

If an employee gets a vaccine exemption for these reasons, then the employer must grant them a reasonable accommodation under the ADA and Title VII. The EEOC defines this as “a change in the work environment that allows an individual to have an equal opportunity to perform a job’s essential functions, or enjoy equal benefits and privileges of employment.” An example of a reasonable accommodation could be to allow the employee to work remotely.

If an employee’s accommodation results in undue hardship on the employer, the employer no longer has to grant the accommodation. The EEOC defines undue hardship as a “significant difficulty or expense for the employer.” For example, imagine an employee requires complex equipment to complete their job. Here, it may be too costly and difficult to provide the remote employee's equipment.

Additionally, employers should note that even though an employee may qualify for an exemption, they may be a direct threat to the workplace if they do not receive a COVID-19 vaccine. According to the EEOC, an employee poses a direct threat if they are a “significant risk of ... harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Objective medical evidence must prove this risk. As a direct threat, an individual is not protected by the ADA's non-discrimination provisions. Furthermore, “if no accommodation exists that would either eliminate or reduce the risk, the employer may refuse to hire an applicant or may discharge an employee. As of March 2020, the CDC has classified the risk of having the COVID-19 virus as a direct threat to the workplace.

Other Considerations

Employees who are not exempt may need to take the COVID-19 vaccine if required to by contract. In other words, employees may already have a vaccination requirement as a part of their existing employment contracts. Thus, employees may need to show up-to-date immunization records if the employer asks. Conversely, unionized employees may have a clause in their collective bargaining agreement where they do not need to get vaccinated. These employees should discuss vaccination matters with their union stewards.

For more information on the EEOC’s response to the effects of COVID-19 on the ADA and the workplace, click here.