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updated: 3/21/2021 6:52 PM

Yes, employers can generally mandate that employees get the COVID vaccine

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  • Scott Cruz

    Scott Cruz

  • The first Pfizer-BioNTech COVID-19 vaccination to be administered in New Jersey is prepared at University Hospital, in Newark, N.J.

    The first Pfizer-BioNTech COVID-19 vaccination to be administered in New Jersey is prepared at University Hospital, in Newark, N.J.

 
By Scott Cruz
Greensfelder, Hemker & Gale, P.C.

The Equal Employment Opportunity Commission recently issued guidance for employers regarding whether they may implement a mandatory vaccination program. Subject to two exceptions, employers may require employees to be vaccinated, and/or show proof of vaccination.

The two exceptions to an employer's mandatory vaccination program are the following: employees who refuse to be vaccinated on the basis of a recognized disability, or on the basis of a sincerely held religious belief.

As background, the EEOC governs workplace anti-discrimination laws, including the Americans with Disabilities Act and Title VII of the Civil Rights Act. Before implementing mandatory vaccination programs, employers should generally be aware of how the ADA and Title VII interact with a mandatory vaccination program, and in some cases conflict with one.

Under the ADA an employer can have a workplace policy that includes "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace." If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose a "direct threat" due to a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."

If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely, take a leave of absence or implementing other safety measures that would permit the unvaccinated individual to remain in the workplace but reduce the risk of that individual coming into contact with others.

Under Title VII, employees are protected from discrimination on the basis of, among other things, religion. If an employee indicates that he will not receive a vaccination based on a sincerely held religious belief, an employer must provide the employee with a reasonable accommodation, absent an undue hardship.

The definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. The EEOC advises employers to presume that, when an employee invokes a "sincerely held" religious belief, the religious belief is indeed "sincere." However, if there is an objective basis on which an employer may indeed question the sincerity of an employee's religious belief, an employer generally is justified in requesting additional information from the employee.

Employers may decide not to implement a mandatory vaccination program. If so, employers may find a voluntary vaccination program is a more effective alternative. Employers that decide to roll out a voluntary vaccination program should pay for the "administration fee" that vaccine providers may charge for giving the shot, whether directly or indirectly through their employee health insurance plan, if available.

In addition, employers should determine how they can otherwise incentivize employee participation in a voluntary vaccination program, including reimbursing employees for any related costs, as doing so will like increase employee participation in the program. Employers implementing a voluntary vaccination program should also be sure to keep abreast of the latest developments concerning the vaccine, and its potential side effects, as a voluntary vaccination program may lose favor if employers are not transparent.

Employers should consult their existing policies and procedures before making any decisions, particularly to prevent against vaccination programs running counter to current policies and procedures. Should employers decide to make the vaccine mandatory, employers should establish guidelines that comply with applicable law, especially in the event a given employee is disabled or refuses to take the vaccine on the basis of a sincerely held religious belief. Best practice is to consult with an experienced labor and employment attorney to ensure full compliance.

• Scott Cruz is a labor and employment attorney and officer at Greensfelder, Hemker & Gale, P.C. He can be reached at scruz@greensfelder.com or (312) 345-5008.