The first vaccine to protect against COVID-19 became available to the public in December 2020. As federal, state, and local public health officials work to distribute the vaccine as widely as possible, employers are sure to have questions about how this may affect them. Can they require their employees to get vaccinated? Can employees claim an exemption from a vaccination mandate? What rights do employees have if their employer decides not to require vaccinations?
The answers to these questions will vary from one state, county, or city to another, but several federal agencies have offered guidance that applies nationwide.
In general, employers can impose mandatory vaccination policies as long as doing so is consistent with state and local laws, and they provide medical and religious exemptions to employees where appropriate.
Not everyone can receive vaccinations safely. People with conditions that lead to suppressed immune systems and people with allergies to vaccine components, for example, cannot receive certain vaccinations.
The Americans with Disabilities Act (ADA) allows employees with disabilities that would prevent them from safely obtaining a vaccine to opt out of a mandatory vaccination program, subject to certain limits. Employers may ask employees to provide documentation to support their claimed exemption, provided they do not exceed the ADA's restrictions on disability-related inquiries.
An employer must provide a reasonable accommodation to an employee who cannot be vaccinated for medical reasons, but not if doing so would pose a direct threat to the health or safety of individuals in the workplace. And reasonable accommodations aren't required if they would cause undue hardship (that is, significant difficulty or expense) for the employer.
The Equal Employment Opportunities Commission (EEOC) directs employers to assess exemption claims on a case-by-case basis, and to consider four factors:
Reasonable accommodations might include physically separating the employee from other workers, allowing the employee to work from home, or giving extra personal protective equipment to the employee, among other things.
An employee who objects to vaccination because of a sincerely-held religious belief must notify their employer of the belief and the objection. The EEOC states that employers should give employees the benefit of the doubt in most cases, even if the employer is unfamiliar with the employee's beliefs. The employer may request additional information from the employee to support their claim.
Title VII requires the employer to make a reasonable accommodation for the employee's belief, unless doing so would impose an undue hardship on the employer's business. The Supreme Court has held that an employer is not required to incur more than a minimal expense to accommodate an employee's religious beliefs or practices. Many state and local laws impose stricter obligations on employers with regard to employees' religious observances.
In the absence of a policy mandating employee vaccination, employers may offer incentives to encourage employees to receive the vaccine. Employers should create a written policy distributed to all employees, giving everyone the opportunity to participate.
Employers may require employees to produce proof that they have received the vaccine. According to the EEOC, this is not a disability-related inquiry prohibited by the ADA. Employers should warn employees not to provide any medical information beyond basic proof of vaccination.
Probably not. The federal Occupational Health and Safety (OSH) Act requires employers to provide workplaces that "are free from recognized hazards that are causing or are likely to cause death or serious physical harm." It protects employees from retaliation if they refuse to work in a situation that is indisputably hazardous and creates a risk of serious injury or death. These provisions generally envision situations that are far more imminently hazardous than the risk of contracting COVID. Some local or state laws, however, may provide greater protections for employees in this kind of situation.
The OSH Act does not provide employees with a cause of action for unsafe working conditions. Whether employees may hold their employers liable for illnesses resulting from a workplace without mandatory vaccinations is an open question, at least legally speaking.
Workers' compensation laws provide the only remedy in many situations for occupational illnesses and injuries. Given the prevalence of COVID-19 in the community, workers face an uphill battle in proving that they acquired COVID-19 in the workplace.
The Equal Employment Opportunity Commission (EEOC) published guidance in December 2020 entitled "What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws." The guidance addresses how the following statutes may apply to a mandatory vaccination policy:
Read the EEOC's full guidance before instituting a mandatory vaccine policy to ensure you're in compliance with federal law.
If you're an employer or employee with questions about your rights when it comes to the COVID-19 vaccine, consult the government resources listed above. If you still have questions, consider reaching out to an experienced employment attorney.