With the COVID-19 pandemic disrupting businesses around the world, employers may be keen to get their workforce back to normal as soon as possible – yet that desire is forcing new questions about vaccinations.
However, when you’re dealing with a legal issue that has never been addressed before, knowing where to start can be overwhelming.
Fortunately, Practical Law’s legal editors monitor updates and developments so you don’t have to. They have compiled answers and resources for some of the most common questions about COVID-19 vaccinations and the workplace. There are several factors to consider when it comes to mandatory vaccination in the workplace and employers should consider these issues carefully before deciding on any particular policy approach.
Can employers require workers to be vaccinated?
The guidelines of the Equal Employment Opportunity Commission (EEOC) state that a compulsory vaccination program is not prohibited, but must take legal nuances into account. While the case law has focused more on government vaccine mandates than the private sector, that case law has largely affirmed mandatory vaccination programs against challenges to civil liberties.
Most importantly, employers must understand and obey their duty to accommodate a worker’s sincere religious belief or disability. Employers also need to be aware of the latest guidelines on accommodation and the interactive process to ensure they are complying with their legal obligations.
Even if employers can require workers to be vaccinated, should they do so?
While requiring employees to be vaccinated has certain benefits, there are also real risks that employers need to address before making important decisions, including those listed below.
Disabled shelters and vaccines
The American With Disabilities Act (ADA) requires employers to provide reasonable accommodation to qualified workers with disabilities unless the employer can demonstrate that the placement would cause undue hardship. Reasonable accommodation may include appropriate adaptation or change in employer policy, including the requirements imposed by a mandatory vaccination policy.
As with any request for accommodation due to a disability, the employer should contact the unvaccinated worker to determine possible accommodation at work. The ADA creates an exemption from employers’ obligations in the event of undue hardship, which may include, but are not limited to, difficulties related to housing costs, the organisation’s finances, and the impact of the housing on the running of the business.
While we are just beginning to see challenges for COVID-19 vaccine mandates, there have been decisions about other vaccine mandates in healthcare and government. However, with the challenges of COVID-19 being so new, we are sure to see new cases and precedents, and practical law continues to monitor the issue closely.
Vaccines and Religious Housing
Employees may also be entitled to some other type of reasonable accommodation as part of mandatory vaccination. Under Title VII of the Civil Rights Act of 1964 (Title VII), employers must provide housing for a worker’s sincere religious beliefs when it comes to vaccine requirements. Here, too, the law allows for exceptions in connection with the unreasonable severity of the employer.
The definition of undue hardship under Title VII is decidedly milder for the employer and requires that it cause more than minimal business costs.
On the other hand, defining “righteous religious beliefs” can be notoriously difficult and the courts have drawn a wide range of conclusions about what is a sufficient religious belief under Title VII.
Vaccinations and medical issues under the ADA
Usually, the ADA largely prohibits disability-related inquiries from employers to their employees. However, the EEOC has specific vaccination guidelines that state that compulsory vaccination does not qualify as a medical examination. However, employers need to be careful as the EEOC also notes that the use of pre-screening questions by an employer asking if the worker has been vaccinated may inadvertently constitute a disability-related inquiry. Employers must then be able to demonstrate the business need for these issues.
Considerations on contract and hourly vaccines
Under federal law, workers may be entitled to compensation for their waiting time and to receive a vaccine if directed to do so by the employer. Failure to meet wage and hourly requirements is often a very costly mistake, so it’s important to get it right.
Additional Vaccine Considerations
Union employers may also need to consider collective agreements for additional obligations to union members.
In addition, employers who administer vaccinations to workers in the workplace, either themselves or through an outside medical service provider, should determine whether suspected injuries from the vaccination trigger coverage for employee compensation. States are beginning to address this problem, and employers’ obligations may vary from state to state.
Can employers ban workers from work if they refuse to be vaccinated?
Yes, according to the updated EEOC guidelines, but employers shouldn’t be too quick to end the employment relationship. Working with employees to address concerns and ensure compliance is a better approach.
Do employers still have to demand safety measures on site after the workforce has been fully vaccinated?
Yes, vaccinations do not exempt employers from complying with state and local regulations regarding COVID-19 and public health.
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