A year after the COVID-19 pandemic broke out, the world is beginning to emerge from the crisis. In the U.S., where the most deaths attributed to the new coronavirus worldwide have occurred, millions of Americans are getting vaccinated against it every day.
Emerging from the pandemic entails many things, including the reopening of businesses that shut down and furloughed employees or adopted temporary work-from-home operations as a result of government-mandated lockdowns. As these companies emerge from the pandemic themselves, they’ll need to make sure their workplaces are as safe as possible from the virus.
Because vaccines are becoming increasingly more available to more people, employers eager to get back to business safely may require their employees to get vaccinated. This will undoubtedly leave many people wondering if an employer can require their employees to get a COVID-19 vaccine or face consequences – such as termination – if they don’t.
The EEOC’s Guidance on Employer-Mandated Covid-19 Vaccinations
Around mid-December 2020, the U.S. Equal Employment Opportunity Commission issued guidance on employer-mandated vaccinations. Ultimately, however, it fell short of definitively stating whether or not employers who required vaccinations would be in violation of the law. Instead, the EEOC discusses the applicability of the Americans with Disabilities Act (ADA) to COVID-19 vaccination requirements.
Below is a consolidated rundown of what the guidance the EEOC distributed states.
Vaccinations Are Not Medical Examinations
Vaccinations are not medical examinations. Merely requiring vaccination isn’t the same as requiring a medical examination that could reveal an employee’s disability, which could violate ADA standards.
Pre-Screening Questions Must Be Carefully Considered
Employers who vaccinate their employees themselves must be careful with pre-vaccination screening questions. These must comply with the ADA standards for disability-related inquiries.
Merely requesting proof of one’s vaccination is not considered a disability-related inquiry. There are many reasons not related to disability as to why someone has or has not yet been vaccinated. Pressing the issue with further questions about one’s vaccination or lack thereof, however, may begin to violate ADA standards.
Reasonable Accommodation Must Be Made for Certain Employees
Employers must provide reasonable accommodation to employees who indicate they are unable to receive COVID-19 vaccines because of a disability. The employer may not exclude the employee from the workplace, or terminate them, unless providing reasonable accommodation would pose an undue hardship on the employer.
Additionally, some employees may object to vaccination as a result of sincerely held religious beliefs, practices, and/or observances. In these cases, reasonable accommodation must also be extended to employees unless doing so poses an undue hardship.
Employers Can Exclude Unvaccinated Employees from the Workplace
If an unvaccinated employee’s presence poses 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,” then an employer may be able to exclude that employee from the workplace.
Employers will need to assess the following factors:
- Duration of the risk
- Nature and severity of potential harm
- Likelihood that the potential harm will occur
- How imminent the potential harm is
Exclusion from the workplace doesn’t automatically entail termination. Employers can exclude employees through reasonable accommodation, such as changing their work schedules, duties, or making remote work arrangements. If no such accommodation is possible, however, then employers may be able to terminate unvaccinated employees.