Can Employers Require Their Employees to Get the COVID-19 Vaccine?

Can Employers Require Their Employees to Get the COVID-19 Vaccine?

Most of us have gotten mandatory vaccinations when we were a child, but we may not have been required to get a new vaccination in our adulthood. Therefore, can employers require their employees to get vaccinated? Yes, with critical caveats. Employers must have reasonable accommodations for people who choose to abstain from taking the vaccine must have either a medical condition/prevention (Americans with Disabilities Act, ADA)  or sincerely held religious beliefs (Title VII of the Civil Rights Act). The Equal Employment Opportunity Commission (EEOC) stated that those who are unable to receive the vaccine can be “excluded from the workplace”, if your employees are represented by a union, you must bargain with the union before mandating them to get the vaccine. Employers who do not provide reasonable accommodations to employees with exceptions may be subject to workplace discrimination lawsuits. 

Although you can exclude an employee from the workplace, it may be precarious to terminate an employee for not getting the vaccine because as of today, the COVID-19 vaccine has only been approved through Emergency Use Authorization (EUA); which the FDA has stated that patients have a choice for whether or not they want to receive the vaccine. Before stating that a vaccine is necessary for employment, convene with lawyers to assess if employees can sue for wrongful termination in your state. It is the responsibility of the employer to communicate with employees about the plans your company has about the COVID-19 vaccine. 

Disability Exceptions and Accommodations

Under the ADA, employers may have workplace policies put in place that state, “an individual shall not pose a direct threat to the health or safety of individuals in the workplace”. This means that an employer can remove a person from the workplace if they pose a direct threat to the health and safety of the facility (and its employees). The employer must make an effort to accommodate the employee before physically removing the employee or else the employer may find themselves in violation of the ADA. That accommodation may be in the form of having an employee permanently work from home or changing their position so that they do not directly interact with people. If the accommodation is an undue hardship for the employer, the employee may be dismissed. Here are scenarios that you may have to deal with:

  1. An employee who works in the warehouse is unable to get the vaccine due to a chronic illness. Due to the nature of the job, the employee is unable to work from home. How would you handle this situation?
  2. A rival company advertises that all of their employees are vaccinated, which attracts more customers to them causing/ resulting in losing potential and current business. Your company is unable to vaccinate all employees due to medical conditions. These employees are hard-to-find talent that will be difficult to replace if they had to be let go. How will you address this situation?
Religious Exceptions and Accommodations

Similar to those with disabilities, people with sincerely held religious beliefs have an exception to getting a vaccine because of protections under Title VII. A sincerely held religious belief means that the person wholeheartedly believes in their philosophy and has documented evidence to back up their beliefs. If an employee suddenly claims that their religion prevents them from getting the COVID-19 vaccine without prior mention of their religious beliefs, the claim can be potentially disputed because there is reasonable doubt in the sincerity of their beliefs. Here is the EEOC’s interpretation of Title VII’s definition as religion:

 

Title VII defines “religion” very broadly. It includes traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism. It also includes religious beliefs that are new, uncommon, not part of a formal church or sect, or only held by a small number of people.

Some practices are religious for one person, but not religious for another person, such as not working on Saturday or on Sunday. One person may not work on Saturday for religious reasons; another person may not work on Saturday for family reasons. Under Title VII, a practice is religious if the employee’s reason for the practice is religious.

Social, political, or economic philosophies, or personal preferences, are not “religious” beliefs under Title VII.

If a situation comes up where you are suspicious of an employee’s belief, you are able to ask for documentation without the fear of being in violation of Title VII or EEOC’s regulations. If allocating accommodation to a religious employee causes undue hardship for the employer, the employer is able to remove them from the workplace. Spiritual or moral beliefs are not protected under Title VII. For example, abstaining from eating meat because of morals would not be protected under Title VII but abstaining from eating meat because of religion would be protected. Here are some scenarios that may come up; how would you deal with them?

  1. An employee is vegan because of their religion and does not want to get the vaccine because an animal was harmed in the making. How would you approach this situation? Would your decision change if the person was vegan on their volition and not religion-based?
  2. A religious employee does not want to get the vaccine; this same employee has not been performing up to standards and has been reprimanded for making inappropriate comments at work. You see this as an opportunity to let the employee go because he refuses to get the vaccine. Is this allowed under Title VII?
Encouraging Employees to Get Vaccinated

Requiring employees to get vaccinated may cause too much trouble for your HR department and it may be better to encourage employees to get the vaccine. Here are some ideas to incentivize employees getting vaccinated:

  • Offering paid/unpaid time off to get vaccinated
  • Offering incentives for providing proof of vaccination
    • If 75% of the workforce gets vaccinated, there will be a significant bonus or  any other non-cash incentive 
  • Sponsored team/group activity (in-person/virtual) and adding vaccinated employees to a raffle 

Pair these incentives with vaccine education for optimal compliance. Here are some educational materials from the CDC as a base for your vaccine education presentation. 

We hope we were able to answer any questions you had about the vaccine and the workplace. Before announcing anything, please consult with lawyers to make sure you are in alignment with State and Federal laws. Want more HR and career advice? Follow Agency 8 on our social media. 

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