Yes, You Can Require Your Employees to Get Vaccinated . . . and Other Answers About COVID-19 Vaccinations and the Workplace
With two safe and effective vaccines approved by the FDA for emergency use, the United States has begun a historic vaccination campaign. This may signal the beginning of the end of the pandemic—a welcome development for employers and employees stretched thin. But for employers, the availability of vaccines presents new questions and challenges, such as whether they can require vaccination.
May Employers Require Vaccination as a Condition of Returning to the Physical Workplace?
Yes, employers may require vaccination as a condition of returning to a physical workplace, as long as certain measures are followed.
The EEOC amended its COVID-19 guidance last week, explaining that employers can require their employees to be vaccinated, as long as the employer: (1) avoids asking questions about employees’ medical conditions, except in limited situations; and (2) follows established rules around granting reasonable accommodations for people with disabilities or sincerely held religious beliefs that prevent them from being vaccinated. Of course, for practical purposes, any vaccination requirement will have to wait until vaccines are widely available to the public.
If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, that does not mean employers must grant an exception to their vaccination rule; rather, the EEOC confirmed that in that particular scenario, it would be lawful for the employer to exclude that employee from the physical workplace.
Keep in mind that these principles apply to rules requiring vaccination as a condition to returning to the physical workplace. Disability law considers a vaccination requirement a safety-based qualification standard, which is allowed because it is essentially a requirement that an individual not pose a direct threat to the health and safety of individuals in the workplace. This same rationale does not apply if employees are isolated and working from home, and thus not presenting a direct threat to others.
How Do We Accommodate a Request to Not Be Vaccinated, if Vaccination Only Works When Almost Everyone Participates?
If physical presence in a workplace is required to perform the essential functions of a job, then an employer may exclude an unvaccinated employee from the workplace if they can show that the failure to vaccinate poses a “direct threat” to the employee or to others —“a significant risk of substantial harm to the health or safety of the individual or others that cannot be reduced by reasonable accommodation.” Identifying a direct threat requires case-specific consideration of four factors: (1) the duration of the risk; (2) the natured and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
A conclusion that an unvaccinated employee would pose a direct threat to the worksite does not mean that the employee can automatically be excluded from the worksite. Before an employer can bar the employee from coming to work, the employer must consider whether there is any other action (without imposing undue hardship) that could eliminate the direct threat. For example, if reduction in risk can be achieved through social distancing, wearing masks, or temporarily reassigning the employee to a different workstation, then there may be a reasonable accommodation. If physical presence in a congregate work setting is not required to perform the essential functions of a job, then a reasonable accommodation might be to permit work from home until herd immunity of the rest of the workforce is established through vaccination.
Can an Employer Require Proof That an Employee Has Been Vaccinated or Is That Considered a Request for Confidential Medical Information?
The EEOC confirmed that employers may require workers to prove that they have been vaccinated. However, employers should proceed with caution, as follow up questions could lead to trouble to the extent they elicit information about a disability.Any subsequent questions, like asking why an employee chose not to be vaccinated, may not be asked unless they are job-related and consistent with business necessity.
May Employers Offer Onsite Vaccination?
Once the vaccine is widely available, offering onsite vaccination similar to the way that many employers offer flu shot clinics may be an efficient way to vaccinate your workforce. Offering such a service is permitted under the EEOC’s guidance, as long as it is not required and employees have the option of visiting a health care provider outside work to receive their shots.
The reason behind this guidance is that the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act prevent employers from making medical inquiries except in very limited circumstances. The EEOC says that asking the direct question “have you been vaccinated” is not a medical inquiry, but that questions related to why someone is declining to be vaccinated and many of the pre-vaccination screening questions that a medical provider asks are considered medical inquiries. Since employers and their agents may not ask these questions of their employees, it appears the EEOC’s favored practice will be for employees to receive their vaccination outside of work, or at the very least, have the option to do so.
Requiring vs. Incentivizing Vaccination
For a variety of reasons, employers may opt to encourage employees to get vaccinated while not requiring vaccination as a condition of return to the worksite. Policies to encourage vaccination might include benefits to make it easier for employees to obtain the vaccine, which could include:
An optional onsite vaccination clinic;
Time off (paid or without an attendance penalty) to go to a clinic for vaccination; or
PTO for the day after inoculation when the employee might experience side effects.
Policies might also offer rewards to any employee who gets vaccinated in order to incentivize the desired behavior, such as:
Forgiveness of attendance points;
A bonus payment; or
Before implementing any incentive program, we recommend consulting counsel or benefits professionals to ensure the incentive program does not itself need to provide accommodations and otherwise complies with applicable regulations.
Planning for Workforce Vaccination
Unlike at the start of the COVID-19 pandemic, companies now have time to consider and implement thoughtful vaccination policies to keep employees, customers, and the public safe. Even though the vaccine is not yet widely available, employers can plan now for the policies they will set and how to implement those policies when access permits.
Plan now by considering the following:
Whether to require mandatory vaccination or to encourage elective vaccination
Developing a policy that allows requests for reasonable accommodation;
Considering whether the company will contribute toward costs of vaccination (vaccines themselves are expected to be free, but there may be charges from medical providers for storing, transporting, and administering shots)
Whether the company will offer extra PTO or vacation time to give employees time to get vaccinated
Tracking Washington Department of Health and CDC guidance for updates;
Disseminating appropriate and accurate information to employees; and
- Being prepared to mobilize quickly once vaccines are available in your industry or to your workforce.