Employers Might Be Able to Require Vaccination, But Should They?
The availability of COVID-19 vaccines could be the game-changer that finally ends the pandemic and puts Americans back to work safely. However, while many people eagerly wait for their turn to receive the vaccine, some whose occupations put them on the front lines of the pandemic are declining to get the shots. For some employers, there is a delicate balance to strike between health and safety, employee rights and business necessity when it comes to vaccine choice. Ellice Switzer of the Yang-Tan Institute on Employment & Disability explains here some of the considerations to take into account.
The EEOC recently provided guidance related to mandatory vaccination for employment, and the right of employees to decline vaccination under anti-discrimination laws. Although employers have the right to require vaccines in some circumstances, there are provisions within the Civil Rights Act and the Americans with Disabilities Act that allow employees to object to vaccination based on a strongly held religious belief, or medical condition.
In the case of disability or medically related objections, the employee can be asked to provide documentation to prove a medical basis for refusal. In some cases, it could be possible (and perhaps easier) to accommodate an employee by allowing the individual to work in an alternate setting, or reassigning them to duties that carry less risk in regard to infection. In circumstances where employers feel strongly that a vaccine is required for the job, they will need to prove that an employee’s refusal to get the vaccine could pose a “direct threat” to health and safety. A “direct threat” means "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."
Employers may be faced with difficult decisions about barring people from the workplace unless and until health and safety issues can be resolved. Nevertheless, it is permissible under the ADA to require proof of vaccination and to ask other virus-related screening questions if they are “job-related and consistent with business necessity.” The EEOC recommends reminding employees not to voluntarily share additional medical information, which could unintentionally result in a disability-related inquiry.
This scenario is currently playing out among workers and employers in a variety of occupations such as child care, education, health care and many occupations where social distancing isn’t possible. One of the more complex issues to emerge from the vaccination effort is the refusal of many frontline health care and direct support personnel to accept vaccination. In some health care settings, it is estimated that between 12% and 29% of staff have refused the vaccine. This rate of refusal is consistent with anecdotal reports from community-based agencies in New York state providing residential and community-based services to people who are aging or have a disability. The stalemate over vaccinations with such a large percentage of their workforce puts community-based nonprofits in a particular bind. Tasked with providing services to those most vulnerable to negative effects of the coronavirus, vaccination of frontline staff can mean the difference between life and death for the people they serve. However, the sector has been suffering from a long-term staffing crisis, compounded by the pandemic. Leaders fear the “mass exodus” of these predominantly low-wage workers if vaccines are mandated.
Instead, many organizations are opting for education campaigns, and incentives when feasible. While nonprofit and public organizations may not be able to offer the incentives that some private companies are offering employees who get the vaccine, they may be able to offer other incentives such as one-time donations to health savings accounts, an extra day of paid time off or other creative rewards.
Employers should be willing to be flexible in order to help employees overcome fear-based objections to vaccination, but at the same time acknowledge that some people will have a legitimate reason to refuse. Ultimately, issues of health and safety should prevail, and employers do have the ability to determine what is reasonable within specific occupations, settings and job categories.
