Hit Them With Your Best Shot: Can Employers Legally Mandate That Employees Receive COVID Vaccinations?
With the good news that the Food and Drug Administration has approved COVID-19 vaccines comes questions about an employer’s ability to require its employees to take the vaccine. The question we are being asked is: “Can we require our employees to take the vaccine as a condition of employment when it becomes available to them?”
The simple answer is “Yes." However, as with any simple answer, there are exceptions that make the answer not so simple.
Employees who have a sincerely held religious objection to taking vaccines cannot be required to be vaccinated since Title VII of the Civil Rights Act of 1964 prohibits discrimination based upon religion. Requiring an employee who has a sincerely held religious belief against vaccines to be vaccinated is a violation of Title VII.
Although the Equal Employment Opportunity Commission (EEOC) has stated that a vaccination requirement by itself will not violate the Americans with Disabilities Act, employees who have a disability that may be exacerbated by the vaccine cannot be required to be vaccinated. Requiring an employee to be vaccinated when the disability could make a vaccination risky may violate the ADA.
The nature of the employee’s job as well as the industry in which the employee works may have an impact on an employer’s ability to require employee vaccinations. For instance, the Centers for Disease Control and Prevention states that healthcare personnel are among the most likely to be exposed to the virus. A healthcare employee who is not vaccinated also creates risk to patients as well as to the staff members with whom they work.
So, what is the employer’s duty when an employee raises an objection to being vaccinated? It depends upon the reason for the objection and/or the reason for the vaccination requirement.
If an employee objects to becoming vaccinated simply due to a general dislike or distrust of vaccines, that employee will likely not find protection under the law.
In some industries an employer may choose to encourage vaccinations rather than require them. In other industries, such as in health care, an employer may wish to require vaccinations and then deal with those employees who are raising objections to becoming vaccinated.
If an employee who has a bona fide objection to vaccines poses a risk to others in the workplace (as is generally the case in health care), the employer must attempt to make an accommodation for the employee. For instance, an accommodation may be to provide other protective personal equipment so long as the employer can achieve the same level of safety. An accommodation may also be to allow an employee to work from home if the job can be performed remotely.
If no reasonable accommodation is available, or if any accommodation would create a provable hardship on the employer, the employee may be terminated or, more preferably, may be transferred to another position where there is no risk to others.
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Articles distributed by Malecki Brooks Law Group, LLC are advertisements and summaries for general information and discussion purposes only. They are not full analyses of the matters presented, legal, or otherwise, and may not be relied upon as legal advice.