The short answer is yes, an employer can require its employees to receive a COVID-19 vaccine. Law dating back to the turn of the 20th Century provides that vaccines can be mandated during pandemics. More recently, as a result of the 2003 SARS outbreak, the Equal Employment Opportunity Commission issued guidelines for employer, which were updated as a result of COVID-19.
These guidelines permit employers to mandate that employees be vaccinated as long as the mandate is in compliance with applicable employment laws. Specifically, an employer must provide exemptions under both the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act.
If an employee has an ADA protected disability that prevents him or her from receiving the vaccine, such as severe allergic reaction to a vaccine ingredient, the employer must provide a “reasonable accommodation” for that employee. A reasonable accommodation is anything that does not create an ‘undue hardship’ to the employer, being a significant difficultly or expense for the employer. Employers can rely on the CDC guidelines to determine what constitutes a “reasonable accommodation”.
In addition, the employer must determine whether the employee would pose a “significant risk of substantial harm to health or safety of her/himself or others that cannot be reduced or eliminated by the reasonable accommodation.” Factors to assess the risk are (i) duration of the risk, (ii) nature and severity of the risk, (iii) likelihood of harm, and (iv) imminence of potential harm. If the employer determines an unvaccinated employee would pose a risk, the employee can be excluded from the work location, but should not be terminated if other reasonable accommodations can be made, such as remote work.
An employee can also refuse to be vaccinated based on moral or religious belief/practice. In this case, the employer must provide a reasonable accommodation. However, what constitutes a ‘reasonable accommodation’ under a Title VII review is actually a lower standard than under the ADA. Under Title VII, a reasonable accommodation is anything that does not create an ‘undue hardship’, which is anything more than a de minimis cost or burden on employer (as opposed to a significant difficultly or expense as under the ADA).
Incentives in lieu of
Some employers are considering or already providing incentives to employees to get vaccinated instead of making vaccinations mandatory. While this may be assist the employer in achieving 100% vaccination of the workforce, it is important to note that the same basic legal issues exist. If an employee cannot receive the vaccine because of an ADA covered disability or because of a sincere religious belief, the employer will need to to create alternative ways for such employee(s) to be eligible for the incentive or risk running afoul of the ADA or Title VII.
As a small business dealing with the COVID-19 pandemic, we understand that you must regularly make very difficult decisions that attempt to balance the best interests of your employees, customers, and bottom line. But, you are not in this alone. If you have any questions about the COVID-19 vaccine and your employees or if we can assist you with other employment or COVID-19 matters, please contact us at 305.222.7282 or Info@Ser-Associates.com.