Do employers have the authority to require vaccinations?

Recent announcements regarding the availability of vaccines for the COVID-19 virus have been both exciting and concerning for some employers and employees.

Employers need to consider how they will address questions and concerns with respect to the vaccination and its effects on the workplace.

One question is whether employers may require employees or new hires to be vaccinated. In March, the Equal Employment Opportunity Commission confirmed that taking employee temperatures and asking screening questions are permitted. These types of safety protocols are considered medical examinations which, under the Americans with Disabilities Act [ADA] are only permitted when job-related and consistent with business necessity.

The EEOC’s position is that the pandemic met the direct threat requirement. Similarly, employers can require vaccinations. The EEOC recently issued new guidance that employers may administer the vaccine or request confirmation of receipt of the vaccine and that neither is a medical examination.

Although the vaccination is not considered a medical examination, prescreening questions required for vaccination may be if they elicit information regarding a disability. Therefore, such inquiries must be job-related and consistent with business necessity.

The EEOC says that to meet that standard, an employer should “have a reasonable belief, based on objective evidence, that an employee who does not answer the [pre-vaccination screening] questions, and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of themselves or others” in the workplace.

Employers must conduct an individualized assessment to determine whether a direct threat exists as follows:

1. The duration of the risk
2. The nature and severity of potential harm
3. The likelihood that the potential harm will occur
4. The imminence of potential harm.

Additionally, if the employer is going to administer the vaccine in the workplace, all prescreening questions must be confidential. These questions are also subject to other restrictions, such as limitations on asking about a person’s family under the Genetic Information Non-Discrimination Act.

Further, if a safety-based qualification standard, such as vaccination, screens out or tends to screen out individuals with a disability, then the employer must show that the risk of harm to the health or safety of others cannot be eliminated or reduced by reasonable accommodation.

Likewise, employers may encounter those who cannot be vaccinated due to religious beliefs or practices. In such cases, an employer must also provide a reasonable accommodation for that religious belief, practice or observance unless it poses an undue hardship.

Thus, while a business may require vaccination, this does not mean that it can automatically terminate an employee who cannot be vaccinated due to disability or religion. The employer cannot exclude the employee from the workplace or terminate the employee unless there is no way to reasonably accommodate or otherwise reduce the risk so that the unvaccinated employee does not pose a direct threat. Only if the direct threat cannot be reduced to an acceptable level can the employer exclude the employee from entering the workplace.

Therefore, considering whether to require vaccination is a complex issue that comes with risks. Consider whether the employer might promote rather than require vaccination.

Incentives such as gift cards, lunches and/or providing time to get the vaccine are potential ways to promote vaccination. As it becomes more available, it might be offered in the workplace to make vaccination more efficient and more accessible.

As more information pertaining to the vaccines comes available, employers will have additional information to rely on in making their determinations. This must be done advisedly and with an eye toward long-term effect.

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NICHOLE MOONEY

A shareholder and employment law attorney in Dean Mead’s litigation department. She represents individuals and businesses of all sizes in business litigation and employment related issues. Her representation includes drafting employment and severance contracts, drafting handbooks and policies, and counseling and representing employers in litigation regarding all types of employee actions, rights and obligations. She also addresses claims regarding restrictive covenants including noncompete agreements, trade secrets litigation and protection of confidential information. She may be reached at nmooney@deanmead.com or 407.428.5110.

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