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Employers May Be Able to Require Employees to Get Vaccinated. Does That Mean They Should?

This article was originally published on 12.15 and has been revised on 12.16, to reflect the updated EEOC Guidance.

As vaccines for COVID-19 are rolled out and we see a surge in infections, employers everywhere are wondering about mandatory vaccines. While the answer may seem simple to some – of course, people should get the vaccination (!) — there are several mitigating factors to consider.

First, think about your business and how you operate. Does your organization fall under the “high risk” category:

  • Healthcare facilities
  • Manufacturing environments
  • Retail or other service types of organizations that require face to face contact with the public
  • First responders
  • Office environments that cannot provide adequate social distancing either due to physical limitations or the nature of the business

If your organization has managed to shift to a fully or largely remote operation and can remain that way, you may want to wait.

While all employers must consider this issue, those falling into the high-risk category may want to establish a policy addressing vaccination requirements sooner rather than later.

Keep in mind that the Americans with Disabilities Act (ADA) may require some exceptions to any mandate. Under the ADA, if the employee has a disability that prevents them from taking the vaccine, employers may be required to provide a reasonable accommodation in the form of an exemption for that employee, provided the exemption does not create an undue hardship for the employer.

Along those same lines, employers subject to Title VII of the Civil Rights Act of 1964 are required to provide accommodations to individuals who notify them of sincerely held religious beliefs that prevent them from receiving the vaccine. This can be a complicated issue in that employers may be put in the position of providing accommodations for beliefs that they may not necessarily agree with.

To complicate matters further, while the Equal Employment Opportunity Commission (EEOC) recently issued guidance to employers regarding vaccinations, the Occupational Safety and Health Administration (OSHA) has not. Also, while we do not see significant involvement from state regulators on this topic, employers need to be aware of any local or state laws that impact their ability to require the vaccine.

None of these legal issues consider how your employees may feel about required vaccinations. Polling data is still inconsistent in terms of whether employees plan to receive the vaccine once it is available. As all leaders know, the word “mandatory” brings out all kinds of emotions in people and key employees may leave an organization rather than submit to a requirement they don’t believe in. Employers would be wise to consider all aspects of this issue and make a decision that is best for their specific organization. It is also advisable to seek legal counsel regarding any vaccination requirement.

As with so many of the questions revolving around the pandemic, there are no easy answers. Suffice it to say, employers need to develop a plan based on the most recent information and execute that plan when appropriate for your organization.

To stay on top of the latest guidance related to the vaccine and the COVID-19 pandemic, visit OneDigital’s Coronavirus Advisory Hub.