Opinion: Employers may require workers to get COVID vaccine

On Behalf of Mitchell & Sheahan, P.C. | Jan 12, 2021 | Coronavirus/COVID-19 |

A nurse fills a syringe with a dose of the Pfizer COVID-19 vaccine at Stamford Hospital last month.
Ned Gerard / Hearst Connecticut Media

Get the COVID vaccine or you might be fired.

The federal government has ruled that employers can require their workers to get the vaccine. There are exceptions but the implications are considerable as are remaining workplace issues.

The U.S. Equal Employment Opportunity Commission issued guidance for employers related to COVID-19 vaccination policies and their intersection with federal workplace discrimination law. The guidance provides a blueprint for employers considering whether or not it should implement a mandatory vaccination policy.

The EEOC guidance confirms that employers can require COVID vaccinations as long as it provides a reasonable accommodation, if required, for those with a disability or religious beliefs. If an employee says he or she is unable to receive a COVID-19 vaccination because of a disability, the employer cannot bar the employee from the workplace – unless the unvaccinated employee would pose a “direct threat” to the workplace.

Under the Americans with Disabilities Act, the employer would be required to show that the unvaccinated employee would pose a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” However, if the employer determined that the employee would be a “direct threat,” the employer must determine whether a reasonable accommodation would eliminate the perceived risk – before terminating the employee.

An employer also might be required to discuss a possible accommodation with an employee who refuses to take the COVID-19 vaccine due to a sincerely held religious belief. Employers are not required to provide a religious accommodation if it would pose an “undue hardship.” As defined by Title VII of the Civil Rights Act, undue hardship means more than a small cost or burden on the employer. Employers should assume that the religious accommodation request is legitimate. However, if the employer has an objective basis to doubt either the religious nature or the sincerity of a particular belief, practice or observance, the employer can request additional supporting information.

The EEOC also confirmed that a COVID-19 vaccine would not be considered a “medical examination” under the ADA. A medical exam, according to the EEOC, is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairment or health.” Nevertheless, the EEOC urged employers to use caution when asking questions before administering the vaccine. Prescreening vaccination questions may trigger ADA protections of disability-related information.

The EEOC elaborated that if employers administer the vaccine (using health professionals to give the actual shots), it must demonstrate that any prescreening questions are “job-related and consistent with business necessity.”

Employers should keep in mind that federal and state anti-discrimination laws will apply to any vaccine policies regardless of whether the policy is mandatory. For example, requiring only older employees to get vaccines due to concerns that older employers are at higher risk if they contracted COVID-19 would violate the Age Discrimination in Employment Act.

The question of whether to make vaccines mandatory may be the most difficult human resource issue companies will face in 2021. A poll taken last month at a virtual summit by the Yale Chief Executive Leadership Institute found that 72 percent of current and former CEOs said they would be open to vaccine mandates

Employers will face other questions related to vaccines besides besides whether to require employees to get a COVID-19 vaccine. For example, they will need to decide whether to use a third party to administer vaccines or whether employees can get their own vaccine and provide proof of vaccination. And having the option of requiring employees to get a COVID-19 vaccine does not necessarily mean it should do so.

Employers will need to consider factors such as the employer’s industry, the size of the company, whether it should require vaccines for only certain positions, and the extent to which employees can work remotely. A critical factor that employers should also consider is how receptive its workforce will be to making vaccines mandatory. According to a Gallup survey from November, only 58 percent of people would be willing to get the COVID-19 vaccine when it is available.

Gary Phelan is an attorney with Mitchell & Sheahan, P.C. in Stratford, where he practices employment law. He is the co-author of Disability Discrimination in the Workplace and teaches Disability Law at Quinnipiac University School of Law.

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