Considering an Employee COVID-19 Vaccine Mandate? Read This First.

As the COVID-19 vaccines become more readily available, many employers are asking the question: Can I require my employees to get the vaccine? According to an update from the EEOC, the answer is yes—if there’s a legitimate business reason to do so. While mandating the vaccine is something you can do, here’s what you should know regarding legality and other factors.

Updated Guidance from the EEOC

On Dec. 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued revised guidance addressing questions related to the administration of COVID-19 vaccinations to employees. While it hasn’t overtly said such a mandate is legal across the board, it did answer questions regarding what employers must consider if they plan to enforce a vaccine requirement to come to work.

Specifically, the actions of the EEOC imply vaccination could be mandated when a worker would be a direct threat to others or themselves if not immunized. However, if accommodations could be made to stem the potential threat of spreading disease, you would likely have to do that instead.

Unfortunately, in plenty of business situations, employees can’t work remotely or apply accommodations due to the nature of their job. If this is the case, a mandate may be permitted per the EEOC.

Vaccine Mandates and Disabled Employees

If an employee’s disability makes them unable to take the vaccine, the EEOC indicates you should determine whether it is possible to provide a reasonable accommodation to the employee without incurring an undue hardship. As with other disability-related accommodations requests, employers should work with employees to identify workplace accommodation options.  The EEOC recommends you train your managers to handle accommodation requests. This would include knowing how to make the request properly so it gets due consideration. Make sure you have formal written procedures for this so everyone knows what to do.

Before mandating vaccines for disabled employees, there are several factors to consider. For example:

• How dangerous is the infection rate in the nearby area?
• How many other employees are getting the vaccine?
• How much exposure does the employee seeking accommodation have with the general public?

Finally, respect the privacy of employees. Businesses cannot disclose an employee’s specific accommodation as it could invite retaliation. It’s also illegal to mention who has been vaccinated and who hasn’t.

Mandating Proof of Vaccination Is Also Legal

If you can show a vaccine mandate is necessary for your particular situation, it’s acceptable to require employees to provide proof they’ve received it. Since showing proof of vaccination doesn’t necessarily reveal anything about a disability, such a requirement is permitted.

To stay clear of an ADA violation, the proof should not come with specific medical information about the employee. You must also store any such proof carefully to protect employee information. Additionally, persistent questions about an employee’s status involving vaccination (such as why they didn’t get it)—especially asked in a public way—could risk revealing their disability status. This is a violation under the ADA.

Accounting for Religious Exemptions

Some religions have strict limitations, and even outright bans, on receiving a vaccine. This could make it difficult or even impossible for an employee to comply to your mandate without violating their beliefs. Yet again, it’s important to reach a reasonable accommodation if this issue arises. The courts in this context have defined “undue hardship” to include anything “having more than a de minimis cost or burden.”

The EEOC permits you to request proof of a sincerely held belief. However, you must have an objective basis for the request. Given the sensitive nature of religious matters and risks of perceived discrimination, it’s a good idea to consult a lawyer when considering this possibility.

Pre-Screening Questions About Vaccinations Must Comply with ADA

Pre-screening questions about vaccinations must comply with the ADA, especially if you’re mandating the vaccine at your workplace. Your inquiries must be related directly to the job the employee performs (or will perform) and the requirements of that job. If you feel an employee is dodging questions or providing inaccurate answers to avoid vaccination, you need reasonable belief (backed by evidence) that they represent a direct threat to the health of everyone.

This requirement doesn’t apply if you’re offering the vaccine on a voluntary basis, since answering the questions is also considered voluntary. The same is true if an employee gets the vaccine from an independent third party.

Regardless of how you approach this task, make sure you keep any information you collect private and secure. For this reason and others, you might opt to simply require proof of vaccination instead of handling the administration yourself.

Other Considerations

Getting a vaccine is not considered a medical examination by the ADA, so their restrictions on such exams don’t apply.

Make sure employees are well informed about the costs and benefits of the vaccine. They should also be clear as to their rights regarding disabilities and the ADA.

Any company considering a vaccine mandate should contact a lawyer for guidance. It also helps to work with a human resources professional when creating your plan. The sooner you start, the sooner you’ll be ready when the COVID-19 vaccine reaches widespread availability.

All content provided in this article is for informational purposes only. Matters discussed in this article are subject to change. For up-to-date information on this subject please contact a James Moore professional. James Moore will not be held responsible for any claim, loss, damage or inconvenience caused as a result of any information within these pages or any information accessed through this site.