If Employees Refuse Vaccinations  
August 16, 2021 - California Farm Labor Contractors Association

As mandatory COVID-19 vaccines become more widespread, many employers are asking what they can do if workers refuse. Some employers are firing workers who won't take the vaccine and others are requiring unvaccinated employees to submit to weekly testing and take other safety precautions.

The Equal Employment Opportunity Commission (EEOC) has weighed in with guidance that answers some workplace vaccination questions. For example, the agency said that federal anti-discrimination laws don't prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. Employers that encourage or require vaccinations, however, must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 and other workplace laws, according to the EEOC.
An employee with a religious objection or a disability may need to be excused from the mandate or otherwise accommodated.

If an employee refuses to obtain a vaccine, an employer needs to evaluate the risk that objection poses, particularly if an employer is mandating that employees receive a COVID-19 vaccine.

A vaccination mandate should be job-related and consistent with business necessities. Under the ADA, an employer can have a workplace policy that includes "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace." If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose such a threat. The EEOC defines a "direct threat" as a "significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation."
The agency said employers should evaluate four factors to determine whether a direct threat exists:
  • The duration of the risk. 
  • The nature and severity of the potential harm. 
  • The likelihood that the potential harm will occur. 
  • The imminence of the potential harm. 
If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.