As COVID-19 vaccines become available, employers may require vaccines before employees return to the worksite if the employer believes that failure to be vaccinated constitutes a direct threat to other employees.
Employees wonder whether they’ll be required to get a COVID-19 vaccination if they want to keep their jobs. Basically, employers can set working conditions, according to Dorit Reiss, a law professor who specializes in legal and policy issues related to vaccines, who was quoted in an AARP publication. And that includes health and safety work conditions, with a few limitations.
Liability arises from requiring a vaccine when there’s an unwanted side effect that creates harm to the employee, says Jay Rosenlieb, an employment attorney, also quoted by the AARP. That could lead to a workers’ compensation claim against the employer — and against the vaccine manufacturer.
The speed of the development of a COVID-19 vaccine and the politics that have accompanied it add to reasons that employers may be unwilling to make vaccination a requirement, according to an advocacy group that supports vaccines, the Immunization Coalition. That shadow, says the group’s chief strategy officer L.J Tan, may make some employers reluctant to make COVID-19 vaccination a condition of employment.
Exceptions should be made for workers who can’t be vaccinated due to disabilities or sincerely held religious beliefs. You don’t have to accommodate secular or medical beliefs about vaccines. The more likely that nonvaccinated employees will put customers, fellow workers or the general public at risk, the more persuasive is the case to require vaccinations, as noted in an SHRM article.
Business Context Matters
Health care, travel and retail businesses whose employees are at risk or who present a risk to others will have more reasons to be pro-vaccine. Office-based businesses and firms that can rely on remote workers may find it easier to take a personal choice stance.
If public health authority guidance adopts the view that employers shouldn’t permit unvaccinated employees in the workplace, then your liability for not requiring vaccinations could be a legal issue later, regarding the application of appropriate safety protocols.
Available guidance indicates apparent support by several government agencies for mandatory vaccination policies. Based on findings by the Centers for Disease Control and Prevention, the Equal Employment Opportunity Commission has determined that COVID-19 meets the direct threat definition.
During the pandemic, this guidance justified asking workers more in-depth health-related questions and performing employee medical screening before reporting for work. The EEOC hasn’t issued guidance for how it will view mandatory vaccine policies.
The vaccine is expected to first go to first responders and high-risk workers in health care facilities, then people with underlying conditions at high risk, then teachers, next young adults and later everyone else.
Who Is Exempt and How?
Employers subject to the Americans with Disabilities Act generally must provide reasonable accommodations to employees with disabilities that prevent them from receiving a vaccine. Also, employers subject to Title VII of the Civil Rights Act of 1964 must reasonably accommodate individuals who notify employers that sincerely held religious beliefs prevent them from receiving the vaccine.
You may ask the employee the nature of the limitation and the difficulty that the vaccination would cause. You may require a worker to provide documentation from a medical provider.
Accommodations for religious reasons are a bit more complicated. Employers generally should assume that these requests are based on sincerely held beliefs. If you question that sincerity, you may ask for supporting information from a religious official, a member of that religion or another person who’s aware of the employee’s religious belief.
Be mindful not to pry for too much information, attorneys caution. An employer who asks for unnecessary evidence risks liability for denying a reasonable accommodation request. Employers could be legally required to give workers some reasonable alternative to continue to work, like wearing a mask, working from home or working separately from other people.
This is just an introduction to a complex, nuanced issue. Further guidance and court rulings may change the situation later. For now, work closely with qualified professionals if there are issues at your company.