Employers generally have the ability to define terms and conditions of employment, including health and safety standards in the workplace. As a result, the general rule is that employers may require employees to be vaccinated against COVID-19 as a condition of returning to on-premises work. However, every general rule has some exceptions and qualifications. The rules surrounding COVID-19 vaccination are no different.
Consider, for example, guidance issued by the United States Equal Employment Opportunity Commission. The EEOC states the basic proposition that employers may ask their employees if they have been vaccinated against COVID-19, and may also ask for proof of vaccination as a condition of returning to work. An inquiry concerning an employee’s COVID-19 vaccination status does not necessarily reveal a medical condition or elicit information about a disability and therefore is not an improper disability-related inquiry.
However, EEOC cautions employers to bear in mind two important considerations. First, if a vaccination requirement screens out or tends to screen out an individual with a disability, the employer “must show that an unvaccinated employee would pose a direct threat due to a significant risk of substantial harm to the health or safety of the individuals or others that cannot be eliminated or reduced by reasonable accommodation.” In order to avoid eliciting information about a potential disability and providing the basis for a disability discrimination claim if the employer takes some adverse employment action against the employee, it is advisable to instruct employees to only provide information regarding the vaccine and no other medical information. In fact, employers would be wise to warn employees not to provide any medical information when providing proof of vaccination.
Second, once an employer is on notice of an employee’s sincerely held religious belief, practice, or observance which prevents the employee from receiving vaccination, the employer must provide a reasonable accommodation for the religious belief unless it would pose undue hardship. Determining undue hardship is done on a case-by-case basis, but the standard for establishing undue hardship is relatively easy to satisfy.
If an employee refuses to become vaccinated because of a medical condition, and this poses a direct threat to the workplace, an employer may exclude the employee from physically entering the workplace; but the EEOC nevertheless indicates that the employer should not automatically terminate the employee. Instead, the employer should consider whether reasonable accommodations could be made such as working remotely or in more isolated areas of the workplace. Similarly, the employer should engage in an interactive process with employees objecting to vaccination for religious reasons to consider whether a reasonable accommodation might exist that does not pose an undue hardship for the employer.
Many employers have opted to encourage, but not require, vaccinations. Please contact one of our attorneys if you would like to discuss the pros and cons of a mandatory vaccination policy at your place of business.
