As vaccines are now broadly available to most U.S. workers, questions remain about whether employers can mandate vaccinations and require that employees show proof of vaccination.
Businesses, in most cases, can require employees receive a vaccination.
Last month, for instance, a Texas hospital system with 26,000 employees was among the first major health care systems to mandate vaccinations of all of its employees, and reportedly has already terminated at least one management employee who failed to receive the vaccine by the hospital’s deadline.
About 44% of employers that responded in a recent survey by Arizona State University said they will require employees to get vaccinated, while 31% will just encourage it and 14% will require just some employees be vaccinated.
No Virginia laws currently prevent employers from requiring workers to receive the vaccine as a condition of employment.
The only official opinion on this topic came from Attorney General Mark Herring, who recently said the state’s public colleges and universities have the authority to require vaccines among their students. He said colleges “may condition in-person attendance on receipt of an approved COVID-19 vaccine during this time of pandemic.”
Under federal law, the Equal Employment Opportunity Commission has suggested employer-mandated vaccinations do not violate federal discrimination laws, including the Americans with Disabilities Act.
The EEOC cautioned employers that administer the vaccine from asking pre-screening questions that go beyond the scope of those that are job-related and consistent with business necessity.
Employers that require the vaccine as a condition of employment are safer to not administer the vaccinations themselves so as to not run afoul of the ADA.
Some states initially pushed back on vaccination mandates, introducing a flurry of legislation around the country.
Arkansas legislators passed a law on April 28 prohibiting the state and local governments from mandating the vaccine as a condition of employment, among other prohibitions. But this new state law doesn’t apply to private businesses.
New Jersey recently clarified that its New Jersey Law Against Discrimination would not prohibit an employer from requiring a worker to receive the COVID-19 vaccine in order to return to the workplace unless the person is unable to do so as a result of disability or pregnancy.
Employers that mandate the vaccine must make reasonable accommodations to workers who are unable to receive the vaccine due to a disability or sincerely held religious belief.
Employers cannot simply terminate an employee if this is the case. The company must engage in an interactive process to determine if the employee can nevertheless continue working.
A business needs to determine first if an unvaccinated employee would pose a direct threat to the workplace due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
If so, the employee can be excluded from the workplace, which may or may not result in termination, depending on whether other reasonable accommodations can be made.
Where there is no “direct threat,” companies should consider other reasonable accommodations, where necessary, for such unvaccinated employees so that the person can return to the workplace if on-site attendance is an essential job function.
Each analysis should be individualized. This is not a one-size-fits-all.
The process must be “flexible” and “interactive” so that the business can provide reasonable accommodations that do not impose an undue hardship. Employers can contact the Job Accommodation Network at askjan.org for assistance in providing accommodations to unvaccinated workers.
Employers should keep confidential that an employee is receiving reasonable accommodations due to a disability or religious belief.
There has been some discussion about the impact of the FDA’s emergency use authorization on the approved vaccines and whether employers can require the vaccine as a condition of continued employment.
In its guidance, the EEOC referred to the FDA’s obligation under the authorization to ensure that recipients of the vaccine are provided certain disclosures such as the known and potential benefits and risks, the extent to which benefits and risks are unknown, and the individual’s option to accept or refuse the vaccine.
The EEOC suggests that this information is typically given to recipients of the vaccine via a fact sheet by the vaccine provider.
No court has ruled on whether the emergency use authorization status for the vaccines prohibits employers from requiring a vaccine as a condition of employment. The EEOC also does not appear to believe that to be the case.
Last month, employees of the Los Angeles school district filed a lawsuit to prohibit their employer from mandating the vaccine based on the emergency use authorization.
The EEOC also opined that requiring proof that an employee has received the COVID-19 vaccine is not likely to elicit disability-related information, and is therefore permissible.
The EEOC cautioned, however, that asking subsequent questions, such as why the employee didn’t receive the vaccination, may elicit information about a disability and therefore trigger a violation of the ADA.
Employers should have a good business reason for requiring a vaccination, or proof of one, and should make sure that employees are not bullied or harassed because they are not vaccinated.
Only if employees must return on-site to the workplace should employers even entertain making vaccinations mandatory.
Karen Michael is an attorney with Richmond-based KarenMichael PLC. She can be reached at email@example.com.