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CAN I REQUIRE MY EMPLOYEES TO GET THE COVID-19 VACCINE?

By:         Michael J. Ernst, Partner

We all crave a return to normalcy from the current pandemic, and the COVID-19 vaccine may prove to help us get there. Which begs the question: Can I require my employees to get the vaccine?

The short answer is YES. The U.S. Equal Employment Opportunity Commission (“EEOC”) has approved employers’ requiring employees to get vaccinated, as long as they provide reasonable accommodations for religious objections and disabilities. Thus, the issue becomes not whether employers can require vaccination, but rather, should they.

Ultimately, every employer is going to have to consider a number of factors in its decision, including its business, contact with customers and clients, social responsibility, and consequences of employee refusals. For example, many medical providers or assisted living facilities have required vaccination for front-line workers, given the ongoing contact with compromised clients and ease of spread of infection. On the other hand, an accounting firm may have more opportunity for remote work or social distancing within an office. Employers also have to factor in the availability of the vaccine in their area and the ability and eligibility of their employees to receive the vaccine.

If an employer decides to require vaccination of its employees, it needs to consider the response to employees who refuse vaccination. If the refusal is not based on religious objections or disability, an employer is entitled to terminate or furlough the employee for refusing to get vaccinated.

However, if an employee’s refusal is based on religious objections or disability, employers have a duty to reasonably accommodate the employee’s refusal. The EEOC and existing law require that accommodation requires working with the employee to attempt to reach a solution that doesn’t pose a direct threat to the workplace or an undue hardship on the business. Employers are reminded that, in the case of religious objections, the employee’s beliefs must be sincerely held but do not have to be common or “mainstream” beliefs.

If an employer decides to require vaccination, it may require employees to submit proof of vaccination. However, if an employee refuses to get vaccinated (and has not requested accommodation for religious beliefs or disability), employers need to be aware that probing too deeply into the reasons may violate current EEOC and Americans with Disabilities Act (“ADA”) regulations.

Many employers may decide on a middle-ground approach and not require vaccination, but instead strongly encourage employees to get the COVID-19 vaccine. These employers may even consider incentivizing employee vaccinations. Still other employers may choose to do nothing, not require or encourage vaccination, and proceed with existing safety protocols. 
 
Stokes Carmichael & Ernst LLP (“SCE”) has represented businesses in employment law – as well as in commercial law and collections, business law, and general civil litigation – for over 49 years. SCE will celebrate its 50th Anniversary in 2022 – a testament to the firm's success and longevity. SCE provides sound legal advice at a reasonable cost and is experienced in representing employers in a myriad of issues. Both the author and the firm are rated by “AV® Preeminent®” by Martindale-Hubbell® (the highest rating given by the legal industry’s premier peer-review rating system), reflecting “Preeminent” legal ability and “Very High” general ethical standards. Mr. Ernst has also been continually recognized as one of “Georgia’s Legal Elite,” as a “Georgia Super Lawyer®,” and as a “Top Rated Lawyer®.” 

If you have questions about requiring your employees to get the COVID-19 vaccine or any other employment law questions regarding your company, please contact Mike Ernst at 404.603.3441 or mje@scelaw.com.