Can My Employer Require Vaccination against COVID-19?
As the implementation of the COVID-19 vaccine increases and doses become more available, questions arise about whether or not an employer can require its employees to get vaccinated. The answer invokes several areas of law that have to be considered in balancing the rights of the employee versus the interest of the employer.
For example, the Americans with Disabilities Act (ADA) generally prohibits employers from conducting medical examinations or making health-related inquiries of applicants or employees “unless such examination or inquiry is shown to be job-related and consistent with business necessity.” Recently, however, the Equal Employment Opportunity Commission (EEOC) published guidance that clarifies that a vaccine administered to an employee for the purpose of protecting against contracting COVID-19 is not considered a prohibited “health examination” under the ADA.
But what if the employee has a medical condition that prevents her from receiving the vaccine?
The ADA allows an employer to have “qualification standards” for its employees as long as they are “shown to be job related for the position in question and is consistent with business necessity.” Accordingly, an employer can impose requirements to prevent direct threats to the health or safety of individuals in the workplace. If these requirements tend to exclude individuals who have a disability, however, the employer must show that the threat substantial harm to the health or safety of others cannot be eliminated or reduced by providing a reasonable accommodation. Accordingly, under the ADA, employers generally cannot simply impose a blanket rule that says all employees must receive the vaccine or be fired. The employer must first show (1) that the unvaccinated employee “poses a risk of substantial harm;” and (2) must then work with the employee to see if accommodations could be made to eliminate or mitigate that risk.
What if the employee cannot receive the vaccine due to a religious belief?
Title VII of the Civil Rights Act prohibits discrimination in employment on the basis of religion. Accordingly, if an employee’s sincerely held religious belief, practice, or observance prevents her from receiving the vaccine, the employer must provide a reasonable accommodation. An employer cannot evade this requirement, unless it can establish that the accommodation would pose an “undue hardship” to the employer. These inquiries will generally be determined on an individualized basis. Consideration must be given to the nature of the work, the particular risks involved therewith, the prevalence of employees in the workplace who have already been vaccinated, the availability of remote work, and several other factors to determine if an accommodation can be made before excluding the employee from the workplace.
Can the employer require an employee’s medical information in connection with the vaccine?
As noted above, the ADA generally prohibits health-related inquiries, unless it is shown to be job-related and consistent with business necessity. The EEOC’s guidance has clarified that a requirement for an employee to provide proof of vaccination is not a prohibited “health-related inquiry.” However, this does not mean that employers have carte blanche access to an employee’s medical information. For example, if an employer administers the vaccine itself, or contracts with another party to administer a mandatory vaccine, pre-screening questions could potentially implicate the ADA’s provision on disability related inquiries. Any such pre-screening questions would be subject to the requirement that they be “job related and consistent with business necessity.” If the employee receives the vaccine from a third-party (such as a pharmacy or family doctor) that does not have a contract with the employer, however, the restrictions would not apply.
Moreover, while employers may generally require proof of vaccination, they must be sure to maintain the confidentiality of any medical information obtained from employees in connection therewith. Employers should warn employees not to provide unnecessary medical information beyond the proof of vaccination.
As the pandemic continues to have an unprecedented effect upon the workplace, the rules and regulations will continue to evolve. It is important to consult with an experienced employment attorney to ensure you have the right information. If you have any questions about your particular rights in the workplace, or if you are an employer and you want to ensure your compliance with the law, please contact us today.