When the pandemic first hit our shores at the beginning of 2020, about 44% of the United States workforce started working from home. It quickly developed into a popular trend that made people feel safe and protected during unknown times. Now that the COVID-19 vaccine is here, people feel more secure about living life among others again. This also means that companies are preparing to have their workforce return to their old offices outside of the home.
It’s great to feel as though things are getting back to “normal”. However, some people don’t feel quite ready to return to the workplace. Many continue to fear that they may contract the virus through exposure to customers and colleagues on a daily basis. To remedy this fear, some employers want to require their employees to get the vaccine.
As employees go back to work, they’re starting to wonder whether employers will require them to get the COVID-19 vaccination. Do employers have the right to take away employee autonomy on this issue?
Employers Can Require Employees to Get the Vaccine
Current federal Equal Employment Opportunity Commission (EEOC) law does not prevent employers from requiring employees to get the vaccine. However, they can only require those who work in the physical workplace to get the vaccine. This means employers cannot obligate remote workers to get the vaccine at any point. Fully remote employees are not around other employees on a daily basis; therefore, they pose no danger to their coworkers or customers.
According to the EEOC, this requirement does not violate the Americans with Disabilities Act (ADA). Typically, employers cannot require medical examinations; however, requiring the vaccine doesn’t violate this rule. The EEOC addresses these concerns by specifying that “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination”. As long as the employer isn’t collecting private medical information, they are compliant with the law.
Additionally, as long as the employer does not demand that an employee gets the vaccine based on discriminatory motivations, they are not violating Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), or the Genetic Information Nondiscrimination Act (GINA). To avoid discrimination, employers must require all employees to get the vaccine, rather than just a select few workers.
Some Employees Can Opt Out of Vaccines
Under certain circumstances, an employee can opt-out of a mandatory vaccine requirement. If employees have concerns related to medical disability or have religious beliefs that prohibit vaccinations, they are not required to get vaccines. There are those who possess valid medical exemptions who may be at risk of an adverse reaction to the vaccine. On the other hand, religious exemption happens when the person’s personal religious beliefs conflict with modern medicine. Either way, employees do not have to get the vaccine under these two conditions.
NOTE: Pregnant women may request an exemption from a COVID-19 vaccine. You can read more about that here.
Making Adjustments for Unvaccinated Individuals
If certain employees cannot get the vaccine for the reasons detailed above, the employer must accommodate the employee up to a reasonable extent. However, employers do not have to accommodate employees when the accommodation itself causes the employer undue hardship.
Examples of reasonable accommodations:
- Have the employee wear a mask at work
- Require the unvaccinated employee to socially distance
- Schedule the employee on a modified shift
- Give that employee frequent and periodic tests for COVID-19
- Let the employee work from home
- Allow the employee to take a leave of absence
The EEOC encourages employers to explore all accommodation options for employees who need them. If an employer finds that an employee who cannot receive a vaccination poses a direct threat to the workplace, the employer cannot automatically exclude the employee from the job or take other adverse actions. They would only be permitted to do so if they prove that there is no reasonable way to provide that employee with accommodation.
Sharing Vaccine Confirmation
The law is currently written in such a way that gives the impression that employers who provide vaccinations, or those who enlist a third-party to administer vaccinations, may collect vaccine confirmations from their employees directly. Employers must keep all vaccine records safe and confidential in order to comply with the ADA. To ensure that they’re compliant with GINA, employers cannot collect any genetic information about the employee or the employee’s family.
However, if an employee gets their vaccine through an alternate source, such as their personal physician, health agency, or community healthcare provider, employees have the option to voluntarily submit their vaccine confirmations to their employer. The EEOC specifically states that “an employer may offer an incentive to employees to voluntarily provide documentation or other confirmation of a vaccination received in the community”. This means that if an employee is voluntarily vaccinated, the employee doesn’t necessarily have to share their vaccination information with their employer.
Incentivizing the Vaccine
Employers can legally offer incentives to employees through monetary compensation, prizes, extra time off, and more. They can do this to encourage employees to get vaccinated, to voluntarily provide documentation, or other confirmation of having been vaccinated by doctors or by third-party organizations. However, employers may not offer incentives to employees regarding their family’s vaccination history. This is because they can collect genetic information about the employee and their family. Asking about a family’s history would conflict with GINA.
For example, Target offered their employees 4 extra hours of time off in exchange for a vaccination confirmation. Kroger is giving $100 to each employee who gets a vaccination.
Should Employers Require Employees to Get the Vaccine?
This is an individual choice that employers must make. Most experts recommend that employers solely encourage vaccinations, rather than require vaccination as an employment condition. This gives employees a choice to do what they think is best for their bodies, rather than having an employer choose for them.
Many lawmakers say that requiring vaccines will cause undue risks for companies, as a vaccine may, in rare cases, harm the employee. If that happens, the employee may file a worker’s compensation claim, which can cost a big chunk of change.
Employers also need to consider state law. Many representatives in different states have submitted over 80 legislative proposals that make it more difficult for employers and others to require vaccines. Montana is one of the first states to pass a legislative bill that prohibits discrimination based on a person’s vaccine status. In Texas, Gov. Gregg Abbott signed a law prohibiting businesses or government entities from requiring digital proof of vaccinations. In order to ensure compliance with local laws, employers should check with their state legislature.
Ultimately, if an employer chooses to create a vaccination policy, they must provide managers, supervisors, and other policy-makers with clear information about accommodation requests, information about exempt individuals, mandatory deadlines, and more. Experts encourage employers to be as clear as possible when they relay this information to employees.
Additionally, the EEOC also says that “employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.” When creating your policy, keep this in mind, as some individuals may not have direct access to vaccines, or may have to go on a waiting list before they can get the vaccine.