As COVID-19 vaccines become available, many employers will have a strong case for requiring employee vaccinations, so long as their vaccination policies have certain exceptions, are job-related and are consistent with business necessity, legal experts say.

Employers may legally require COVID-19 vaccination before employees return to the worksite if the failure to be vaccinated constitutes a direct threat to other employees in the workplace because the virus is rampant and easily transmitted in the workplace.  Exceptions legally must be made for employees who cannot be vaccinated because of disabilities or due to sincerely held religious beliefs.

Concurrently, employers legally do not have to accommodate secular or medical beliefs about vaccines.

COVID-19 meets the “direct threat” definition. “During the pandemic, employers have relied on this guidance to justify asking employees more in-depth health-related questions and performing medical screening of employees before
allowing them to report for work. The EEOC has not yet issued guidance for how it will view mandatory vaccine policies.

In the context of flu vaccines, the EEOC has explained that employers that are subject to the Americans with Disabilities Act (ADA) generally must provide reasonable accommodations to employees with disabilities that prevent them from receiving a vaccine. 

Similarly, employers that are subject to Title VII of the Civil Rights Act of 1964 must reasonably accommodate individuals who notify them of sincerely held religious beliefs that prevent them from receiving the vaccine.

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) confirmed that a COVID-19 vaccination requirement by itself would not violate the Americans with Disabilities Act. That law prohibits employers from conducting some types of medical examinations.  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination, according to the EEOC says.

But some employees may be exempted from mandatory vaccinations based on potential concerns related to a disability they may have or for religious beliefs that prohibit vaccinations.  The best and safest strategy for employers is to simply encourage their workers to get immunized rather that issue a company-wide mandate.  Whether vaccination is at the workplace or in the community, employers, employers should implement flexible, non-punitive sick leave options (e.g., paid sick leave) for employees experiencing symptoms after vaccination.

 After employees are fully vaccinated, they may be able engage in activities they had stopped because of the pandemic. However, in work settings, even after employees receive a COVID-19 vaccine, they may still need to take steps to protect themselves and others in many situations. Employers should continue to follow the Guidance for Businesses and Employers Responding to COVID-19. These guidelines include wearing well-fitting masks, social distancing, washing hands, and encouraging employees to stay home if sick. If other workplace health and safety measures, such as engineering controls (e.g., barrier protections), are installed, they should remain in place.

Do not hesitate to contact the attorneys at Tishkoff if you have questions regarding business or employment law.