Can Employers Require a COVID-19 Vaccine?

As the availability of the COVID-19 vaccine becomes more widespread across the country, employers are faced with the decision to require, or not require, employees to receive the vaccine. On December 16th, the Equal Opportunity Commission (EEOC) and the Center for Disease Control (CDC) released guidance making it clear that employers may require the vaccine but will need to comply with the ADA and other protective legislation.

In the guidance released, the CDC and EEOC stated that COVID-19 meets the definition of a “direct threat”, and therefore employers are able to do things like health screenings and require vaccines for the good of their entire workforce. While the vaccine can generally be required, experts say employers should be prepared to make reasonable accommodations for those that refuse the vaccine. Employees who refuse the vaccine due to disability or sincerely held religious beliefs are protected under federal law, while local and state legislation may offer more specific protections to others who refuse the vaccine.

Under the Americans with Disabilities Act (ADA), employers are required to make reasonable accommodations for those who cannot get the vaccine. In addition, some local and state laws provide additional workers rights protections that may create a need for accommodation beyond those covered by the ADA. These accommodations could include anything from plexiglass barriers and additional sanitation, to remote work options. Some experts suggest strongly encouraging the vaccine, but allowing a remote work option for those who are uncomfortable getting the vaccine.

In the situation that an employee does not want to or cannot get the vaccine, employees can be barred from entering the premises. Because COVID-19 is considered a direct threat, and the presence of an unvaccinated person could cause harm to the individual or those around them, employers may make the decision to keep them from entering the workplace. While it can be tempting to let an employee go under these circumstances, experts urge caution. Be aware of federal, state, and local laws that may apply and ensure that the employee is not available for leave under the Family & Medical Leave Act (FMLA), prior to making any decisions.

If your organization has decided to require the vaccine, do your best to be aware of employee feelings on the issue. COVID-19 and the new vaccine have become a polarizing issue for many. Do your best to remain empathetic as you approach employee concerns, fears, and frustrations. Maintain an open dialogue, while clearly establishing and communicating expectations of the organization. Experts suggest erring on the side of kindness, allowing options for those that are uncomfortable as much as possible. This may mean allowing those willing to get the vaccine back to the office while keeping others remote for a longer period of time.

No matter what your organization decides, create clear, concise policy surrounding the requirement or recommendation for the vaccine. Be sure to clearly communicate these policies to employees on multiple occasions and provide information about how to request accommodation or voice concerns. This will help employees to understand requirements while still feeling heard and respected.

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