When Employers Can Require a COVID-19 Vaccination

May 28th, 2021

According to research from the Society for Human Resource Management (SHRM), approximately 60% of workers plan to get the COVID-19 vaccine. However, 28% say they’re willing to lose their jobs if their employers require it.1

Whichever camp you’re in, you’d probably like to know whether your employer can institute a vaccine mandate—or whether they might offer you some interesting incentives instead, like a cash bonus or extra time off. Here’s what you need to know.

Few Employers Require COVID-19 Vaccinations

The federal government does not require vaccination for individuals. For some health care workers or essential employees, however, an employer or state or local law may mandate that workers be vaccinated.

Vaccine mandates are far from popular among employers. In a survey conducted by employment law firm Littler, less than 1% of HR leaders say that their companies currently require employees to be vaccinated against COVID-19. In addition, nearly half of respondents to Littler’s survey say that they have decided against a vaccination requirement.2

Meanwhile, in its survey on emerging trends in health care, global advisory and brokerage firm Willis Towers Watson reports that 60% of surveyed employers have communicated the value of vaccines to employees, and 35% are planning to do so or are considering it. Less than a quarter of employers are considering or planning on requiring employers to be vaccinated in order to return to the office, while just 10% are considering proof of vaccination as a condition for employment.3

There are good reasons for your employer to avoid requiring vaccinations. Employers are cautious because federal law allows employees to ask to be exempted from vaccination requirements for medical or religious reasons.

EEOC Vaccination Guidelines

The Equal Employment Opportunity Commission (EEOC) enforces workplace anti-discrimination laws and has published COVID-19 guidance for employers.

Employer-Administered Vaccinations

The EEOC guidelines state that if an employer administers the COVID-19 vaccine, it must show that any prescreening questions it asks employees are “job-related and consistent with business necessity,” unless the vaccination is voluntary or if a third party that doesn’t have a contract with the employer is administering the vaccine. If the vaccination is voluntary, the employee’s decision to respond to questions is also voluntary.4

Requesting Proof of Vaccination

Asking for proof of vaccination must also be handled with caution to avoid disability and religious exemption issues. The EEOC states that if an employer requires employees to provide proof that they have received a COVID-19 vaccination, the employer may want to warn the employee not to provide any medical information as part of the proof to avoid violating the Americans With Disabilities Act (ADA).4

Can Employees Be Fired for Not Getting Vaccinated?

Can you be fired if you won’t get vaccinated? It’s possible, but protections for disabilities and religious beliefs apply. Under EEOC guidelines, employers can ask for proof of vaccination, but the employer shouldn’t ask why, because the inquiry could elicit information about a disability. If an employee cannot get vaccinated for COVID-19 because of a disability or a religious belief and no reasonable accommodation is possible, then it would be lawful for the employer to exclude the employee from the workplace.5

Important. This doesn’t mean the employer can automatically terminate the worker. Employers will need to determine if the employee has rights under Equal Employment Opportunity (EEO) laws or other federal, state, and local legislation.

OSHA Guidelines

The Occupational Safety and Health Administration (OSHA) has issued guidelines requiring employers to track adverse reactions to the vaccine if they require the shots as a condition of employment.

Vaccinations and Legal Issues

Even though the EEOC guidelines provide exemptions from mandatory vaccinations, the Centers for Disease Control and Prevention says that  some essential workers may fall under a state or local vaccine mandate. Check state and local laws to see what your employer can require.

“Generally, employers may ask employees to show proof of a vaccine as a condition to enter the workplace, but they should refrain from asking why an employee did not get vaccinated to avoid possible ADA or other EEO violations,” said  Angela Preston, senior vice president and counsel of corporate ethics and compliance at  background and identity verification company Sterling, in an email interview with The Balance.

In the case of employees refusing the vaccine due to their religious beliefs, Preston said, “Employers may need to provide reasonable accommodation unless it would pose an unjustified hardship under Title VII of the Civil Rights Act.”

Note. The legal and policy issues are murky and evolving. Many employers may opt to sidestep potential problems and encourage voluntary vaccination.

Preventing Discrimination at Work

Title VII of the Civil Rights Act prohibits discrimination based on race, color, national origin, religion, sex, or pregnancy. The EEOC enforces Title VII, as well as the  Americans With Disabilities Act, the Age Discrimination in Employment Act, and other laws prohibiting discrimination at work. Under the  EEOC’s latest guidance, your employer is allowed to:

  • Ask employees if they’re experiencing symptoms of the coronavirus, including fever, chills, cough, and shortness of breath.
  • Measure an employee’s body temperature.
  • Require employees to stay home if they become ill with symptoms of COVID-19.
  • Mandate a doctor’s note from employees who are returning to work after being sick with COVID-19.
  • Require COVID-19 testing before “initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.”4

Note. The EEOC allows viral testing, which shows whether the subject has an active COVID-19 infection, but not antibody testing, which may show whether the subject has previously been infected with COVID-19. Antibody testing is considered a violation of the ADA.

Vaccinations and Company Policy

Some employers may choose to mandate vaccination, but others will opt to encourage it. In an email to The Balance, Jon Hyman, an author and an employment and labor practice attorney at Wickens Herzer Panza, explained the potential reasons why very few employers are mandating vaccinations.

“There are too many legal risks regarding a failure to accommodate employees’ disabilities and sincerely held religious beliefs, not to mention the practical risks that the exceptions could swallow the rule,” he said. “I also have a concern that employees resent employers that invade medical privacy by mandating the vaccine.”

Instead, Hyman advocates “educate, don’t mandate,” meaning that instead of requiring the vaccine, employers should provide their employees with information about its safety and efficacy.

Employee Vaccination Incentives

The EEOC has yet to issue guidance on whether employers can offer financial incentives to employees to persuade them to be vaccinated.

Sterling SVP Preston notes that these incentive programs and those that offer extra time off or gifts are tricky and “can violate several state and local laws, including wellness program rules and EEO laws.” Until the EEOC guidance is published, your employer may be reluctant to roll out incentives that might fall into a gray area of the law.

Tip. If you’ve been working remotely and want to keep that flexibility, these considerations might work in your favor.

“Employers must also follow the guidance from the EEOC that calls out questions about vaccinations—all questions must avoid disclosing any disability,” Preston said. “In the case that a safety-based vaccination requirement screens out an individual with a disability, employers may need to make reasonable accommodations.”

She also advises employers to look at remote work opportunities, because terminating a worker who cannot meet an organization’s vaccine requirement can violate EEO laws or other federal and state laws.

ARTICLE SOURCES

  1. Society for Human Resource Management. “Employers’ Vital Role in Helping to Achieve Herd Immunity From COVID-19.” Accessed May 14, 2021.
  2. Littler COVID-19 Employer Survey Report.” Page 1. Accessed May 18, 2021.
  3. Willis Towers Watson. “S. Employers Making Moves to Facilitate COVID-19 Vaccination of Employees, Willis Towers Watson Survey Finds.” Accessed May 18, 2021.
  4. S. Equal Employment Opportunity Commission. “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” Accessed May 18, 2021.
  5. S. Equal Employment Opportunity Commission. “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” K.5, K.7. Accessed May 18, 2021.

This article was originally published in The Balance Careers.

Sterling is not a law firm. This publication is for informational purposes only and nothing contained in it should be construed as legal advice. We expressly disclaim any warranty or responsibility for damages arising out this information. We encourage you to consult with legal counsel regarding your specific needs. We do not undertake any duty to update previously posted materials.