Now that 3 vaccines are out and vaccination rates are increasing, job candidates, employees and employers wonder whether employers can mandate the vaccine. The usual lawyer answer to most questions like this one is, “it depends”.
Employers can require that employees get inoculated as a condition of working on site, but this is subject to exceptions/accommodations for medical or religious reasons. The federal Equal Employment Opportunity Commission (EEOC), which enforces workplace disability, religion and accommodation laws, recently updated its COVID Technical Assistance publication (What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws) to provide clarification.
What if I Have a Disability? - Under the Americans with Disabilities Act (ADA), if a disability prevents the employee from receiving the vaccination, the employer must try to provide a reasonable accommodation (such as work from home) unless it would pose an “undue hardship” to the company (i.e., significant difficulty or expense, which is often hard for employer to prove).
If the work can only be done on site, the employer must determine if the unvaccinated employee presents a significant risk in harm to health or safety that cannot be eliminated or reduced through reasonable accommodations. For example, perhaps the employee can have a private office or space distant/partitioned from others.
If you need such an accommodation, notify HR (rather than your supervisor, who should not be involved in decisions/information about your medical condition). The company is required to engage in a flexible, interactive process with you to try and identify workplace accommodation options that do not constitute an undue hardship. You may need to provide medical documentation about the disability and possible options for accommodation, based on the nature of the workforce and your position.
If there is no accommodation possible (e.g., the work can’t be done remotely nor safely on site), then you may be prohibited from entering the premises. But this doesn’t necessarily mean that you will be fired (or not hired). The business must still consider your rights under federal or local laws, including paid sick leave or unpaid FMLA leave, as well as company leave policies.
Even without any statutory leave, an accommodation could include paid or unpaid sick leave for a reasonable period. Also, while the 2021 stimulus package is still pending at the time of this writing, it may renew the 2020 federally-paid sick and family leave related to COVID under the Families First Coronavirus Response Act (FFCRA). It officially expired on December 31, however, employers who have chosen to continue providing it through March 31 may still receive the 100% tax credit.
Can I Refuse a Vaccine for Religious Reasons? – Similar to disability accommodations, once an employer is on notice that an individual can’t get the vaccine due to a sincerely held religious belief, practice, or observance, the company must try to provide a reasonable accommodation unless it would pose an “undue hardship” (even harder to prove for religious accommodations). The same interactive process and considerations that apply to disability will govern.
Must I Answer Pre-Screening Vaccination Questions? – The CDC advises health care providers to ask certain questions to ensure that there is no medical reason that would prevent a person from receiving the vaccination. But applicants and employees have reasonable privacy concerns about inappropriate questions and employers learning more than necessary, and the ADA has restrictions on disability-related inquiries.
If the employer (or its agent) administers the vaccine, it must show that any pre-screening questions are “job-related and consistent with business necessity”. Pre-screening questions that ask about genetic information, such as whether family members had or have COVID, may violate the Genetic Information Nondiscrimination Act (GINA).
Can the Company Require Proof of My Vaccines? – Employers can require proof. This is not a disability-related question and is not likely to elicit information about a disability. If you receive your vaccination from a pharmacy or your health care provider, make sure the documentation of proof does not provide any medical information. Notably, an employer asking you why you did not receive a vaccination could produce information about a disability and must be “job-related and consistent with business necessity”.
Please stay safe and healthy, and even after you are fully vaccinated, continue to mask, social distance and follow the other CDC, state and local guidelines, both at work and at home.
- Lori A. Goldstein, Employment Attorney and CRC Board Member