COVID-19 Vaccination and the Workplace: FAQs for Employers

What employers need to know about their rights and responsibilities when it comes to the COVID-19 vaccine.

Questions

Can I require my employees to get a COVID-19 vaccination?

Yes, with some exceptions. Private-sector employers generally can require their employees to get a COVID-19 vaccination as a condition of employment, as long as employers consider requests for exemption on disability or religious grounds (discussed below).

That said, certain workplaces are subject to unique conditions. For example, if the work relationship is governed by a collective bargaining agreement, the agreement might prohibit mandatory employee vaccination or otherwise address the topic of vaccinations. Similarly, if your employees are not "at will," but instead have individual employment contracts, the contracts might speak to vaccination requirements.

Employers considering a mandatory vaccination plan should also take into account changing state and local laws. While there are currently no state laws specifically addressing COVID-19 vaccinations—and many states have laws requiring other vaccinations for certain types of workers—states could pass new legislation or interpret existing laws to prohibit mandatory COVID-19 vaccination.

For example, Oregon has indicated that while employers may require COVID-19 immunization under federal and state law, certain categories of employees, such as police officers, firefighters, and health care workers, are exempt under Oregon's existing vaccination law. The approach to the pandemic at the federal, state, and local levels is constantly evolving, so employers should stay up to date on changes to the law.

In addition to these legal considerations, there are significant practical issues to bear in mind when deciding whether to mandate employee vaccinations or, alternatively, to make vaccinations voluntary. These include the public health interest in achieving herd immunity, protecting your employees' health and safety, avoiding business closures caused by COVID-19, the degree of vaccine hesitancy in your workforce, the administrative burden of processing vaccination exemption requests, and reducing the cost of employee absences and medical care due to COVID-19, among others.

What do I need to do if an employee requests an exemption from the COVID-19 vaccination requirement on disability grounds?

Employers can generally require vaccination as a condition of employment as long as they consider requests for disability accommodation under the Americans with Disabilities Act (ADA), and for religious accommodation under Title VII of the Civil Rights Act of 1964 (Title VII). The ADA and Title VII require employers to extend reasonable accommodations to employees with disabilities or sincerely held religious beliefs that prevent them from getting vaccinated.

The Equal Employment Opportunity Commission (EEOC), the federal agency that enforces workplace antidiscrimination laws, has issued guidance on COVID-19 vaccination and the workplace. In it, the EEOC explains that if an employee requests an exemption from an employer's mandatory vaccination program on disability grounds, the employer must first determine whether the unvaccinated employee would pose a "direct threat" to their own or others' health and safety.

Employers should conduct a case-by-case analysis of four factors to determine whether an unvaccinated employee constitutes a direct threat:

  • the duration of the risk
  • the nature and severity of the potential harm
  • the likelihood that the potential harm will occur, and
  • the imminence of the potential harm.

For example, in a business where all employees work remotely, an unvaccinated employee likely doesn't pose a direct threat, whereas in a workplace that requires all employees to be present on-site, working together closely in an unventilated, indoor space, an unvaccinated employee probably would constitute a direct threat.

If you conclude that an unvaccinated employee poses a direct threat, you must next determine whether the threat can be eliminated or reduced by reasonable accommodation. Just as you would with any other request for accommodation, you should engage in an interactive process with the employee to determine the extent to which a reasonable accommodation might allow the employee to perform the essential duties of the position without imposing an undue hardship on your business. The ADA defines undue hardship as significant difficulty or expense incurred by the employer.

The accommodation process should include:

  • deciding whether it's necessary to obtain supporting documentation about the employee's disability (note that courts disagree about whether sensitivity to vaccines constitutes a covered disability)
  • considering the possible options for accommodation given the nature of the workforce and the employee's position, and
  • in determining undue hardship, understanding that the prevalence in the workplace of employees who already have received a COVID-19 vaccination, and the amount of contact with others whose vaccination status could be unknown.

If there is a direct threat that can't be reduced to an acceptable level absent undue hardship, your employee is not protected by the nondiscrimination provisions of the ADA, and you can exclude the employee from physically entering the workplace. This doesn't mean that you may automatically terminate the worker. You will need to determine if any other rights apply under federal antidiscrimination laws or other federal, state, and local laws.

What do I need to do if an employee requests an exemption from the COVID-19 vaccination requirement on religious grounds?

If an employee requests a religious exemption from your vaccine requirement, EEOC guidance provides that, because the definition of religion is broad and protects beliefs, practices, and observances with which you might be unfamiliar, you should ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief. On the other hand, if you have an objective basis for questioning either the religious nature or the sincerity of a particular belief, you would be justified in requesting additional supporting information.

As you would with a request for accommodation on disability grounds, you should engage in an interactive process with the employee to determine how you can reasonably accommodate their request without imposing an undue hardship on your business.

The test for undue hardship is less exacting under Title VII than it is under the ADA: employers are not required to grant religious accommodation requests that result in more than a minimal cost to the operation of the employer's business.

If there is no way to reasonably accommodate the employee's request absent undue hardship, then it would be lawful for you to exclude the employee from the workplace. This doesn't mean that you may automatically terminate the worker. You will need to determine if any other rights apply under federal antidiscrimination laws or other federal, state, and local laws.

Can I provide on-site COVID-19 vaccination for my employees without running afoul of the limitations on employer medical examinations and acquisition of genetic information?

Maybe. The ADA limits your ability to require medical examinations of employees, but the EEOC has made clear that the administration of a COVID-19 vaccine to an employee by an employer or third party is not a medical examination for purposes of the ADA. This is because administering a vaccine does not in itself constitute an inquiry into an individual's disability or current health status.

However, the EEOC has stated that pre-vaccination medical screening questions are likely to elicit information about a disability. As a result, the ADA requires that employers providing on-site, mandatory COVID-19 vaccination show that their screening questions are job-related and consistent with business necessity. To meet this standard, you must have a reasonable belief, based on objective evidence, that an employee who does not answer the questions (and, therefore, does not receive a vaccination) will pose a direct threat to their own or others' health and safety. The analysis required to determine the existence of a direct threat is discussed above.

There are two exceptions to the requirement that pre-vaccination screening questions be job-related and consistent with business necessity:

  • if you are providing vaccinations on a voluntary basis, then an employee's decision whether or not to answer medical screening questions must also be voluntary, and
  • if your employee receives a mandatory vaccination from a third party that does not have a contract with you, such as a pharmacy or other health care provider.

Finally, if the screening questions would elicit information about an employee's genetic information (for example, questions about an employee's family medical history), then they are prohibited under the Genetic Information Nondiscrimination Act (GINA).

Can I require proof of COVID-19 vaccination by a third party provider without running afoul of the limitations on employer medical examinations and acquisition of genetic information?

Yes. Requesting that your employees provide proof of COVID-19 vaccination is not considered a disability-related inquiry because it's not likely to elicit information about an employee disability. Similarly, it is unlikely to result in disclosure of genetic information. If you require your employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, you may want to warn them not to provide any medical information as part of the proof in order to avoid implicating the ADA or the GINA.

If you require proof of vaccination from a third-party provider, however, you still need to comply with all the other ADA requirements regarding disability and religious exceptions to a mandatory employee vaccination policy (discussed above).

Can I offer my employees incentives for voluntary COVID-19 vaccination?

Yes. If you decide that, rather than adopt a mandatory vaccination policy, you will encourage your employees to get vaccinated voluntarily, there are a variety of incentives that you can offer your employees to increase the likelihood that they will get immunized. For example, you could provide paid time off for employees to get the COVID-19 vaccination. Many employers already offer this incentive to encourage employees to get other types of vaccinations. You could also consider adopting a permissive approach to employee requests for paid sick leave to the extent necessary to recover from any vaccination side effects. You may also wish to provide cash incentives or wellness benefits, consistent with applicable law.

Are employees who have an adverse reaction to the COVID-19 vaccine entitled to workers' compensation coverage?

Maybe. While it's still unclear whether employees who experience any adverse reaction to a COVID-19 vaccination would be entitled to workers' compensation coverage, employees are more likely to receive workers' compensation benefits if the vaccine was administered at the workplace or in accordance with an employer's mandatory vaccination policy.

Do I need a lawyer to help me figure out all the COVID-19 vaccination requirements?

An experienced employment lawyer can help you stay on top of federal, state, and local laws and other guidance regarding COVID-19 vaccinations. If you decide to institute a mandatory vaccination program, an employment lawyer can help you implement the program in such a way that requests for exemption and the accompanying accommodation processes are legally compliant, while also increasing the likelihood that only employees with a good-faith need for accommodation take advantage of these exemptions.

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