Can my job make me get the vaccine?
This question has been asked by many employees as vaccines for COVID-19 become more widely available, and circumstances in the world return to “normal”—or as normal as they can be. As expected, there has been much debate surrounding this question. Some employees who have refused to get the vaccine argue that it is not fair for jobs to force them get a “new” vaccine when the effectiveness and long-term side effects may not be fully known. On the other hand, those who argue that it should be legal for employers to require employees to get vaccinated against COVID-19 have noted that employers have a right to enact this safety precaution against this deadly disease.
Recently, there have been some high-profile cases involving employees who have been terminated (or not hired) because of their refusal to receive the COVID-19 vaccine. Most of these cases have involved employees in the health-care industry. However, other industries will undoubtedly soon face the issue of whether employees can legally be required receive a COVID-19 vaccine.
Recent updated guidance by the Equal Employment Opportunity Commission (“EEOC”) provides an answer to the question as to whether employees can be required by their jobs to get the COVID-19 vaccine. On May 28, 2021, the EEOC issued the following guidance:
The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII and the ADA and other EEO considerations discussed below. These principles apply if an employee gets the vaccine in the community or from the employer.
Essentially, the guidance issued by the EEOC means that YES, an employer can require employees to receive a COVID-19 vaccine. There may be state or local laws that will arise which will prevent employers from requiring the vaccine. In fact, some state and local governments have moved to pass laws that prohibit employers from requiring certain employees to be vaccinated. But, in general, there are no current federal laws that prohibit an employer from requiring that employees get the COVID-19 vaccine.
There are exceptions to almost every rule. Employees may be allowed an exemption from a workplace requirement for vaccination because of a disability or religious reasons. In such cases, the employee may request a reasonable accommodation to be excused from the COVID-19 vaccine. However, an employer does not have to excuse an employee from receiving the vaccine if doing so would be an “undue hardship”—meaning if excusing the employee from the vaccine would be too difficult or too expensive for the employer.
An employer’s requirement that employees be vaccinated cannot violate other laws. Therefore, an employer cannot target employees for vaccination based on their race, sex, religion, national origin, or other protected bases. Policies requiring vaccination should also not disproportionately impact employees based on protected bases. Any policies that require vaccinations must be consistently and lawfully applied.
Not only can employers require employees to receive the COVID-19 vaccine, but employers can also offer treats, prizes, and other incentives to employees who receive the vaccine. There are limitations on the incentives that can be offered. For instance, if an employee voluntarily receives a vaccine from their employer or the employer’s agent, the incentive to employees cannot be so substantial as to be “coercive” or make employees feel pressured to reveal protected medical information. Because pre-screening questions for the vaccine require answers to disability-related questions, workers may feel pressured to reveal otherwise private medical information if an incentive is too significant. However, no such limitations on incentives exist if employees are only voluntarily providing documentation that they received the vaccine from a third-party who is not their employer or employer’s agent.
As more workplaces determine whether employees will be required to be vaccinated, employees must also be prepared to make informed decisions. Employees should determine if their workplace has implemented or will implement policies requiring that employees be vaccinated. If so, and employees are not vaccinated, they must make the decision as to whether they will plan to be vaccinated. Employees should not only communicate with their employers, but they should also communicate with their medical providers. If employees can assert an exemption based on a disability to any workplace requirement that requires vaccination, then they should work with their medical provider to provide documentation of the disability. Employees who are asserting the need for any accommodation to be excused from vaccine requirements should also be ready to work with their employer to determine if any reasonable accommodations are available. Furthermore, employees need to understand that reasonable accommodations, including exemptions from mandatory vaccine policies, do not always have to be granted.
The fallout from COVID-19 continues to impact us in all areas of our lives. The debates and uncertainties around the vaccines only add to the overwhelming anxiety, tension, and strain that have taken control of our lives for over a year. Hopefully, employers and employees will be able to strike a balance to come up with reasonable and safe solutions to ensure that our society begins the long road back to normalcy. Of course, what normalcy is in an ongoing pandemic also remains up for debate.
Stay safe and healthy!
We continue to look forward to more HOPE, HEALING, and HEALTH!
Phillis and the Rambsy Law Team
