Ask the Expert: Can We Require Employees Receive a COVID-19 Vaccine?

By Kelley Zanfardino

As employees begin to return to the workplace, one consideration that is paramount in the minds of employers is whether they should require employees to receive the COVID-19 vaccines.

Considerations Regarding Vaccines and the Workplace

The question of vaccines has long been the topic of much debate. Some individuals believe that all persons who can be vaccinated should be, leading to herd immunity in the fight to eradicate life threatening diseases worldwide. Others believe that the right to determine their own medical decisions includes the ability to choose whether they are vaccinated for any purposes.

Regardless of where you stand on this topic, the idea of requiring employees to receive a vaccination for COVID-19 prior to returning to the workplace brings with it a number of considerations regarding rights in the workplace. A part of this consideration should include, the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and Title VII, including the Pregnancy Discrimination Act.

The ADA regulates what employers may ask, require, and do regarding an employee’s ability to perform their role in the organization, including whether a disability has been disclosed or not. GINA protects employees from being required to disclose genetic information about themselves or their family. Title VII protects employees’ civil rights related to religion race, sex, and national origin, and includes the Pregnancy Discrimination Act protecting pregnant employees from unlawful discrimination based on sex.

Employers must take these laws into consideration when determining whether they will require employees to receive a vaccine. If the employee has a disability and states that he or she cannot get the vaccine, the employer will need to engage in the interactive process and provide a reasonable accommodation as required under the ADA. If the employee has a sincerely held religious belief that prohibits vaccinations, the employer will need to accommodate the employee’s beliefs in accordance with Title VII.

Can Businesses Require Employees Receive a COVID-19 Vaccine Before Returning to Work?

Employers may be tempted to require employees to show proof that they received the COVID-19 vaccine before returning to the workplace, but is it as simple as that?

The Equal Employment Opportunity Commission (EEOC), the regulatory agency that provides guidance on these issues, has stated that employers may require employees to obtain COVID-19 vaccines, and show proof of having done so, if the requirement is “job-related and consistent with business necessity.” The EEOC has noted, though, that employers should be prepared to accommodate employees who are unable to obtain the vaccine due to disability or religious reasons.

Employers who are considering requiring proof of a vaccine prior to returning should work with counsel to determine what jobs require vaccination, and what business necessity exists to support this need. In addition, any prescreening processes they engage in should be reviewed for compliance with the ADA and GINA.

Accommodations for Those Who Don’t Receive the Vaccine

Employers who have a business need to require vaccinations for employees in specific jobs, must still consider the need to make accommodations for others in the workplace who either do not fall into the roles defined under the business need, and those who may be within those roles, but have a protected reason to not receive the vaccination, whether it’s due to medical or religious reasons.

Providing a reasonable accommodation to employees is required by the EEOC when the ability to do so does not pose and undue hardship on the employer. This is a tricky area, and employers should engage counsel in the determination of what may be considered reasonable.

Part of providing a reasonable accommodation is the protection of the fact that an employee has requested the accommodation, whether or not it was provided, and if it was, protection of the employee’s privacy regarding the reasons why and, if possible, the fact that an accommodation has been provided at all.

These are all critical concerns in the workplace that employers must consider in their efforts to provide a safe and compliant workplace.

Kelley Zanfardino is Senior Human Resource Compliance Analyst at Insperity. Insperity is a full-service HR solution that provides organizations access to a wide range of services to help them increase efficiencies, effectively manage employees and reach their goals. Learn more at www.insperity.com.

Photo credit: iStock.com/Manit Chaidee