The COVID vaccine is divisive, with 20% of Americans ‘pretty certain’ they won’t get a vaccine. But the benefits of the vaccine for the workplace are compelling. With improved employee health outcomes, reduced risk of workplace transmission, and increased customer confidence among them. So, can you (and should you) require your employees to have the COVID-19 vaccine?
The short answer: yes, you can. The long answer is a little more complex.
Here’s what you need to know about requiring the COVID-19 vaccine:
Implementing a COVID-19 Vaccine Policy
If you choose to mandate the vaccination, you will need to implement a workplace policy and your employees will need to sign it. The vaccine policy should address the procedure the company will follow for implementing the vaccine, as well as your legal obligations to protect employees who are unwilling to be vaccinated for different reasons.
Addressing concerns related to the vaccine
Employers cannot require employees with a sincerely held religious belief or medical disability to be vaccinated. Employers should not make quick employment decisions because of an employee’s unwillingness to obtain the vaccine.
If an employee chooses to not be vaccinated on medical or religious grounds, you likely need to provide reasonable accommodations for that employee, including changing a job scope, allowing telecommuting or an unpaid leave of absence – unless those accommodations would pose an undue hardship. You can read more about the definition of undue hardship here.
Addressing the ADA
If an employee can’t receive the vaccination due to medical or religious reasons, the employer and employee need to engage in the interactive process to try and find an accommodation for the employee to perform his or her job.
What the ADA has to say…
The American Disability Act allows employers to implement ‘qualification standards’ that include “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace”.
Where a direct threat exists, an employer must assess whether reasonable accommodations that allow the employee to keep their job can be made to eliminate or reduce this risk. A reasonable accommodation does not need to be at the workplace – it can include things such as telecommuting, even an unpaid leave of absence.You can read more about reasonable accommodations here.
Legal risks associated with not requiring your employees to receive the COVID-19 vaccine
As long as your business acts in line with current COVID safety standards, it’s highly unlikely your visitors or employees would succeed in making a claim against your business.
But should employers mandate the vaccine?
Consider the practicalities involved with requiring your employees to have the vaccine. You will need to provide paid time off for your employees to be vaccinated. Will you require proof of the vaccine? Will you reimburse employees for mileage to and from the vaccine location? Will you pay for the vaccine?
Beyond this, consider the impact of requiring the vaccine on employee/employer relations. By mandating the vaccine, you are (in effect) making a health decision on your employees’ behalf and potentially alienating employees who refuse to be vaccinated on protected grounds.
Also, you need to be cautious when asking your employees about their vaccination status. Legally, you can ask if they’ve had the vaccine – but don’t ask why/why not. The best approach here is for your company to allocate a point person (likely in HR) who will spearhead the company’s response, including all discussions with employees about the vaccine.
As you can see, there’s lots to consider! If you need guidance or assistance in implementing a COVID-19 vaccination policy in your workplace, reach out. We’re here to help.
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