As COVID-19 vaccines become readily available, many employers are still wondering if they can require employees to get vaccinated, and what they can do if an employee refuses to get vaccinated.
The Equal Employment Opportunity Commission (EEOC) has produced some guidance in this area. Employers may encourage or possibly require COVID-19 vaccinations, but policies must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other workplace laws.
Under EEOC guidance, employers should evaluate four (4) factors to determine whether a direct threat exists in order to mandate employee vaccinations:
- The duration of the risk.
- The nature and severity of the potential harm.
- The likelihood that the potential harm will occur.
- The imminence of the potential harm.
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 or take a leave of absence.
Employers should determine whether a reasonable accommodation can be made, which includes the following considerations:
- The employee’s job functions.
- Whether there is an alternative job for the employee.
- How important it is to the employer’s operations that the employee be vaccinated.
Title VII requires an employer to accommodate an employee’s sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business.
If an employee cannot get vaccinated because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, an employer could possibly exclude the employee from physically entering the workplace. However, this does not mean an individual can be automatically terminated. Employers will need to determine if any other rights exist under the EEOC laws or other federal, state and local authorities.
Rather than implementing mandates that could lead to very difficult decisions, employers may want to encourage and incentivize employees to get vaccinated, such as:
- Develop vaccination education campaigns.
- Make obtaining the vaccine as easy as possible for employees.
- Cover any costs that might be associated with getting the vaccine.
- Provide incentives to employees who get vaccinated.
- Provide paid time off for employees to get the vaccine and recover from any potential side effects.
Employer mandates for vaccinations have substantial consequences. As such, an employer is strongly encouraged to seek legal counsel for ANY mandates that are required.