The COVID-19 pandemic continues to reshape the workforce and present uncertainty and unique challenges to employers and employees. With the arrival of the COVID-19 vaccination comes another difficult question that both employers and employees face: Can employers require employees to receive the COVID-19 vaccination? The short answer is, yes. As an example, many healthcare employees are required to receive a flu shot every year. However, there are numerous exceptions to a potential vaccination requirement from an employer that should be taken into consideration.
Something to keep in mind when considering a vaccination requirement is the Americans with Disabilities Act (“ADA”). Under this Act, if a reasonable accommodation is requested by an individual with a recognized disability, the employer must provide the accommodation unless it would pose an undue hardship upon the employer. The Equal Employment Opportunity Commission (“EEOC”) has recently issued much-anticipated guidance for employers to navigate the uncertainty around the COVID-19 vaccine and compliance with the ADA. Pursuant to EEOC guidance, requiring the COVID-19 vaccination would not violate the ADA in and of itself. However, there are several situations an employer should pay careful attention to, to avoid potentially violating the ADA.
The first to take into consideration is a pre-vaccine medical screening. Pre-vaccination medical screening questions, which are necessary to determine if an individual can safely receive a vaccine, are likely to elicit information about a disability. Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these inquiries are job-related and consistent with business necessity as required under the ADA. The second situation to take into consideration is if the employee cannot receive the vaccine due to a recognized disability. The ADA allows an employer to have a requirement that an employee shall not pose a direct threat to the health or safety of other individuals in the workplace. Given the background of the COVID-19 pandemic, it is entirely possible an employer may find an unvaccinated employee to be a direct threat to the workplace. If an employer determines that an employee who cannot be vaccinated due to a disability presents a direct threat at the workplace, the employer cannot exclude the employee from the workplace unless there is no way to provide a reasonable accommodation that would eliminate this risk. If this is the case, the employer may have to explore allowing the employee to work remotely.
Additionally, an employer should take the Civil Rights Act of 1964 which protects individuals from receiving the vaccine due to religious beliefs which would prevent them from receiving the vaccination, into consideration. Similar to the ADA, the employer must provide a reasonable accommodation for the religious belief, unless it would pose an undue hardship to the employer. Medical and religious accommodations are just two of the many factors employers will have to consider when deciding whether to implement a COVID-19 vaccination requirement.
If you would like further guidance on how to navigate a COVID-19 vaccination requirement or COVID-19 and the workplace in general, please reach out to your contact at Mansour Gavin or one of our Labor and Employment attorneys.