Three COVID-19 vaccines have been approved for use, with a fourth on the way. By April or May, all states plan to allow any adult to get a shot. But a significant portion of the population has indicated that they’re reluctant to be vaccinated. What can their employers do? Can you legally require employees to be vaccinated? And what exactly are the rules that employers must follow when it comes to vaccination?
The U.S. Equal Employment Opportunity Commission (EEOC) recently updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws to provide guidance on vaccination-related issues. Here’s a summary of the most important things you need to know from this document.
Can Employers Require Employees to Get a COVID-19 Vaccine?
Likely yes. If employers can show that being vaccinated is a legitimate job requirement, then they can legally require employees to get a COVID-19 vaccine. The rationale is that requiring a vaccine prevents employees from becoming a “direct threat” to themselves and other employees. The Americans With Disabilities Act (ADA) permits employers to require that employees not pose a “substantial risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Keep in mind, however, that employers will have to make reasonable accommodations if employees cannot take the vaccine because of their religious beliefs or because of a disability.z
Can Employers Administer a COVID-19 Vaccine?
Yes. FDA-approved COVID-19 vaccines are not considered a “medical examination” covered by the ADA. Employers must still be careful to not ask pre-vaccination medical questions.
Can Employers Ask About Employees’ COVID-19 Vaccination Status?
Yes. Employers can ask employees whether they’ve been vaccinated. They can also ask for proof of receipt of vaccination. Neither of these questions violates the ADA or any other federal employment law.
But employers need to be careful not to take it too far. For example, they can’t ask why employees chose not to get a vaccination because that might require the employee to divulge disability-related information. And they may want to make sure that the proof of vaccination doesn’t include any medical information, so they can avoid triggering the ADA. The key is to avoid making any kind of medical or disability-related inquiry.
Can Employers Hire, Refuse to Hire, or Fire Employees Based on Their COVID-19 Vaccination Status?
If it is necessary for the job, then the employer can consider vaccination status when making hiring and firing decisions. The key is whether the employer can link vaccination status to a job-related requirement.
If an unvaccinated employee poses a direct threat that exposes other employees to the virus in the workplace, then also consider whether there are any reasonable accommodations that might allow the employee to continue working without imposing undue hardship on the employer. One thing to consider in assessing the risk is how many other employees have been vaccinated and how much contact the employee has with other people whose COVID-19 vaccination status is unknown. If you can’t reduce the threat to employees, you may prefer to stop short of firing an employee and simply prevent them from entering the workplace. This may also help you avoid any problems that may arise under state and local employment laws.
Employers thinking of requiring COVID-19 vaccinations or asking about vaccination status should continue monitoring their state laws for guidance. Many states have legislation pending that might change the rules that apply to your company. Keep watching this website for further updates.