COVID-19 Vaccine – Can Employers Require It?

According to the Food & Drug Administration (FDA), as of December 18, 2020, there are two COVID-19 vaccines authorized for emergency use. The vaccine is issued in two separate doses, approximately 3-4 weeks apart. The CDC and the Advisory Committee on Immunization Practices published recommendations for the distribution of the initial limited supplies of the vaccine, specifying which groups should be vaccinated first. The CDC recommends that the first to be vaccinated should be healthcare personnel and frontline workers, but as the vaccine becomes more widely available, the recommendations will expand to include more groups.

Because the COVID-19 vaccine is now available, many employers and employees are wondering: can I be required to get the vaccine? The answer is yes.

The U.S. Equal Employment Opportunity Commission (EEOC) issued guidance, updated as of December 16, 2020, detailing many frequently asked questions regarding what employers can and cannot ask their employees, or require of their employees, when it comes to COVID-19. The guidelines included a pertinent Q&A which concluded that asking or requiring an employee to show proof of receipt of a COVID-19 vaccination does not violate the American with Disabilities Act and is not a disability-related inquiry, because “[t]here are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.” This means your employer can ask or require you to show proof that you received the COVID-19 vaccination. This is because the vaccination is not considered a “medical examination,” so the employer is not requesting information about an employee’s “impairments or current health status.”

However, employers must still provide accommodations to their employees if an employee indicates they are unable to receive a COVID-19 vaccination because of a disability or sincerely held religious practice or belief. For an employee with a disability, “the employer must show that an unvaccinated employee would pose a direct threat 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 the direct threat cannot be reduced to an “acceptable level,” then the employer can exclude the employee from physically entering the workplace but cannot automatically terminate the employee.

For an employee with a sincerely held religious practice or belief, the employer must provide the employee an accommodation unless doing so would “pose an undue hardship under Title VII of the Civil Rights Act,” which has been defined as “having more than a de minimis cost or burden on the employer.” According to the EEOC, “because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held belief.” If an employer cannot exempt and/or provide a reasonable accommodation to an employee with a disability or sincerely held religious belief, then the employer can lawfully exclude the employee from the workplace. This does not necessarily mean the employer can terminate the employee, and the employer must still comply with other EEO laws, and the laws of state and local authorities.

If you are an employer or employee with questions about compliance with HIPAA amongst the COVID-1 pandemic, contact an experienced employment law or healthcare law attorney.

For more information on the COVID-19 Vaccine, refer to the CDC’s Coronavirus Resources.

For more information on the EEOC and COVID-19, refer to the EEOC’s publication.

Sources:

When Vaccine is Limited, Who Gets Vaccinated First? | CDC

ACIP COVID-19 Vaccine Recommendations | CDC

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov)

https://www.fda.gov/media/137005/download