As businesses gear up to bring employees back to work following COVID-19 lockdowns, many workplace considerations are emerging. This article seeks to address one of the more timely considerations, which is whether an employer can mandate that its employees receive the COVID-19 vaccine.
Employers who are concerned about workplace safety and getting back to normal might be eager to mandate vaccinations. However, not all employees will be thrilled about such a decision. Many Americans remain skeptical about the vaccine itself or have personal reasons for refusing it. Putting employees who wish their colleagues would get vaccinated with those that refuse to get vaccinated has the potential to cause conflict within the workplace and presents workplace health and safety concerns. In this article, we focus on the latter: workplace health and safety concerns.
The U.S. Equal Employment Opportunity Commission (EEOC), which enforces civil rights laws in the workplace, has issued guidance for employers. Under their guidelines, an employer may lawfully mandate that its employees receive COVID-19 vaccinations, with certain restrictions.
Why and how are mandated vaccines allowed? In short, the pandemic meets what the Americans with Disabilities Act (ADA) calls their direct threat standard. This standard creates a legal exception allowing employers to exclude employees from the workplace if they pose a direct threat. The pandemic meets this standard because having employees with symptoms or positive COVID-19 test results poses a significant risk of harm to others. As a result, employers have the freedom to impose medical protocols and standards that otherwise might be unlawful without the pandemic.
That said, employers must still make accommodations for certain employees who refuse to be vaccinated. Under the Americans with Disabilities Act (ADA), employers cannot mandate the vaccine for employees who have bona fide medical concerns with vaccination. Further, under the Civil Rights Act of 1964, employers cannot mandate the vaccine for employees who have bona fide religious exceptions. Sorting out whether an employee qualifies under these exemptions is not a task to take lightly.
If an employee refuses to be vaccinated because they do in fact qualify as having a disability-related or sincerely held religious beliefs, then the employer must provide reasonable accommodations. If a reasonable accommodation is not possible, then it might be lawful to exclude the employee from the workplace, but before doing that employers need to determine if any other rights apply under the Equal Employment Opportunity laws or other federal, state, and local authorities.
If you are an employer and you find yourself in this situation, use great care and consult with an attorney. If you choose to consult with us, great! If you choose someone else, great! Just be sure to get the help you need to navigate this unprecedented time in yours and your company’s life. Click here to access Vaccination resources: