Now that the COVID-19 vaccine has become more widely available, you may be wondering if an employer can require its employees to get vaccinated. Unfortunately, the answer is a bit complicated. Although companies can require vaccinations as part of their employment requirement, there are some important subtleties and exceptions to be aware of.
For example, how should an employer handle a situation where an employee says they cannot be vaccinated due to a disability or religious objection?
According to guidelines provided by The Equal Opportunity Commission (EEOC), if the employer has determined an employee can’t be vaccinated due to a disability, they cannot exclude the employee from the work site unless there’s no other way to provide a reasonable accommodation (absent undue hardship) to eliminate or reduce the employee’s direct risk to the workplace. In the case of an employee’s religious objection, the EEOC says an employer must provide a reasonable accommodation unless it would pose a hardship under Title VII of the Civil Rights Act.
If a reasonable accommodation isn’t available, the EOCC tends to side with the employer. The guidelines state that if an employee cannot get vaccinated due to a religious belief, practice, or observance, and there are no reasonable accommodations available, it would be lawful to exclude them from the workplace. However, this doesn’t mean that the employer can automatically terminate the individual’s employment. Employers will still need to determine if other rights apply under the EEO, federal, state, or local laws.
What Are the Experts Saying?
In an article published on the EEOC guidance, the law firm Pillsbury Winthrop Shaw Pittman LLP wrote, “Despite the EEOC’s guidance that employers may permissibly, with certain safeguards and exceptions, require that employees obtain the COVID-19 vaccine for onsite work, adopting a vaccine mandate for employees still carries legal and practical risks, for several reasons.”
One example in the article states that if a workplace can provide acceptable distance between employees and customers, while still meeting other health guidelines, it would be difficult for the employer to make a valid case for enforcing mandatory vaccination. However, businesses with frontline employees would be more easily able to establish an unvaccinated employee’s direct threat to the workplace or customers, thus have a more valid reason to mandate vaccines.
Melissa Gonzalez Boyce, an attorney and legal editor at XpertHR, weighed in, “Employers should really be treading carefully if they are going down the route of mandating vaccinations among their employees.”
Another point made by law firm Holland & Knight is that it could be argued that employers have a duty to require vaccinations of certain employees.
At this point, the best course is to proceed with caution and research whether other accommodations are available if an employee refuses to get vaccinated. Also, keep in mind that regulations and case law are always changing. If you’re considering a vaccine mandate, make sure to seek qualified advice before taking action.
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