COVID 19: Should Employers Mandate Employees Take the Vaccine?

COVID 19: Should Employers Mandate Employees Take the Vaccine?

The first COVID-19 vaccines are being administered and while it may be quite some time before the vaccines will be available to most of us, employers may well want to begin considering whether to have a vaccine policy.  Why?  In other publications, Epps & Coulson, LLP has discussed OSHA’s requirement for employers to safeguard their employees against COVID-19.  But, with the virus undetectable in many instances, many of the protections employers instituted seem not to ward against employee premises transmission, and that’s the problem.

Employers are asking whether it is possible to require employees show proof of a vaccination in order to return to the workplace.  The answer is yes.  But, what are the considerations?  First, employees cannot indiscriminately enforce the policy and employers should have exclusions in case of employee’s religious objections and disability objections.

The Americans with Disability Act (“ADA”) requires employers to discuss with the employee the issue and make accommodation that the employee might require, but the accommodation must be reasonable and not pose an undue hardship on the employer.  If there is not an accommodation that allows the employee to keep away from other employees (e.g. work from home), and where an unvaccinated employee might pose a direct threat to others in a workplace (think health and safety issues), the employer can require the vaccination or terminate the employee.  But the employer is well-advised before making any decision on an employee’s exemption request, to do an individualized analysis of the facts in an interactive process between the employer and employee.  And, document that process well.

Under a religious exemption request by an employee, the analysis is under Title VII of the Civil Rights Act and centers around whether the accommodation requested would pose an undue hardship (more than a de minimis cost or burden on the employer). The same process for making a decision should be used.

The U.S. Equal Employment Opportunity Commission (“EEOC”) guidance on this issue suggests that a mandate is reasonable and provides responses to inquiries by employees who question whether to comply based on ADA or religious objections: (look at section K).

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Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  While intended as informational and educational, it is considered advertising under laws of some states.  Epps & Coulson, LLP encourages you to call us to discuss these matters as they apply to you or your business.