COVID-19 and Your Employees: Can You Require Vaccination?

As of April 2021, many adult Americans are finally eligible for the COVID-19 vaccination. To keep employees and customers safe, employers may be wondering: Can I require my employees to be vaccinated?

It is a little more complicated than a simple yes or no answer. While it is a personal health issue, federal and state officials have released guidance on what employers are permitted to require as companies get ready to welcome remote employees back to physical offices.

However, employers must move forward carefully and comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and other workplace laws to avoid discrimination lawsuits.

Can an employer mandate vaccination against COVID-19?

Generally speaking, yes, employers can institute a mandatory vaccination policy. In December 2020, the Equal Employment Opportunity Commission (EEOC) updated their COVID-19 workplace guidance to include Q&As that clarified that the COVID-19 vaccination is not a “medical examination” and therefore can be permitted in the workplace setting.

The reasoning behind this guidance is, if the vaccine is provided by a third-party, the employee’s medical-related questions that determine vaccine eligibility are handled confidentially by a third-party medical provider and not the employer. If an employer does choose to offer the vaccination, it must be on a voluntary basis, as long as the employee’s decision to answer pre-screening questions is entirely voluntary—and kept strictly confidential.

While a mandatory workplace vaccination program is not prohibited, there are valid circumstances where reasonable accommodations must be provided to covered employees who opt-out of receiving the vaccine.

Remember that a vaccinated team is not the end of PPE just yet. Even if all employees on-site are vaccinated, your workplace still needs to comply with COVID-19 state and local safety regulations. This includes wearing masks, washing hands often, staying six feet apart, installation of barriers or partitions, avoiding crowds and poor ventilation, and abiding by local government capacity restrictions.

When making your decision to require vaccination, remember that this is just guidance, not law. You should consult with your labor and employment law attorney to know your rights and repercussions in order to make the right decision for your individual business.

Who is exempt from a mandatory vaccination policy?

An employee cannot be mandated to receive the COVID-19 vaccine if they fall under either of these two protected exceptions:

(1) A disability or medical conditions defined by the ADA

(2) Religious beliefs protected under Title VII

Reasonable accommodations must be provided for these applicable employees. You must also be very careful asking an employee about their disability or proving their sincerely-held religious beliefs. Questions can be asked as long as they are job-related and consistent with business necessity, but it is best to turn to an HR professional or labor law attorney to know exactly how to proceed.

What is an example of reasonable accommodation?

As long as it does not cause the business undue hardship, the employer should provide reasonable accommodations for the employees who fall under the exempt categories. This can include a leave of absence, providing the employee with additional PPE, or allowing them to work remotely or in a manner that mitigates risk of exposure to other employees or customers.

Be very careful before terminating an unvaccinated employee to make sure you are in full compliance with discrimination, labor, and workplace laws.

Is it different in each state?

The EEOC guidance is at the federal level and many states are coming forward with their own guidance on the matter. For example, the New Jersey Department of Health announced in March that NJ employers may require residents to receive the COVID-19 vaccine in order to enter the workplace, unless:

• The employee has a disability that would prevent them from getting the vaccine.
• The employee’s doctor advised them not to get the vaccine while pregnant or breastfeeding.
• The employee has sincerely held religious beliefs, practices or observances that would prevent them from being inoculated.

It is not just limited to essential workplaces and employers. Colleges and universities, such as Rutgers University, are also taking steps to require students receive the COVID-19 vaccination in order to return to campus safely.

However, some states are proposing legislation to prohibit certain entities from mandating the vaccine. Turn to your local government and Department of Health for the most up-to-date information. You can see a state-by-state list here.

Can an employer request proof of vaccination?

Yes, an employer can ask for proof of COVID-19 vaccination, but tread carefully. Only ask employees for non-medical proof that may include their name and vaccination date(s). This information should be kept confidential.

If your workplace will be requiring vaccination, you will also want to keep confidential any employee who is not receiving the vaccine due to religion, disability, or other valid medical reasons as per state or local law.

Time off for vaccination

Recent legislation updated the Families First Coronavirus Response Act to include paid time off for vaccination and side effects, at the employer’s discretion, in exchange for payroll tax credits. See more in our article, 2021 FFCRA Updates for Employers and Employees.

Abacus Payroll is here to help

The pandemic has thrown quite a wrench into the typical Employee Handbook. From remote working procedures to new sick leave and vacation time policies and now vaccination, there are many new pressing HR topics that employers need to be prepared to address. For assistance, turn to Abacus Payroll’s HR Help Center, starting at $5 a month, for access to the latest labor law library, HR insights, Q&As and alerts from the certified HR professionals, and more. See more details at www.abacuspay.com/hr.

Need a quote for your small business payroll? Contact us today at (856)667-6225 or fill out our quote request form.