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Editor's note: Now that Covid-19 vaccines are widely available, employers must consider how they will address employee vaccination. This checklist includes factors for employers to consider before requiring employees to receive a vaccine. For information about policies encouraging employees to get vaccinated and/or offering incentives and other issues related to those types of policies, see Employer Vaccine Policy Considerations.
• Generally, employers can require workers to be vaccinated. Most states treat employment as an “at will” relationship, meaning that employers can terminate employees for any legal reason, including refusing to comply with a vaccine mandate. See Employment at Will: State Rulings Chart.
Comment: States that recognize at-will employment can place limitations on vaccine mandates. At least one state has enacted a law that prohibits employers from discriminating against workers based on their Covid-19 vaccination status. Because of this, employers should check their state and local requirements before implementing a vaccination policy. See State Comparison Chart: Lawful Activities.
• Employers that do implement a vaccine mandates must comply with applicable nondiscrimination laws and any collective bargaining agreements that may apply.
Comment: The fact that business or an individual worker is deemed “essential” under federal, state, or local laws does not excuse employers from complying with other employment laws like Title VII and the Americans with Disabilities Act.
The same rules that apply to universal vaccine mandates also apply to more limited or focused mandates, like those that require employees in certain job functions to get vaccinated before returning to their worksite. See EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
• Workers may be entitled to refuse a Covid-19 because of their disability. The Americans with Disabilities Act (ADA) and many state laws require employers to provide accommodations for employees with disabilities unless doing so would cause an undue hardship or create a “direct threat.” An employee's disability creates a direct threat if, even with an accommodation, an employee's disability creates 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. See 29 C.F.R. §§ 1630.2(r), 1630.15 and State Chart Builder: Disability Discrimination.
• Employers generally can require workers to provide medical documentation to receive a reasonable accommodation. However, some states limit how or when employers can require such documentation. See State Chart Builder: Reasonable Accommodations.
• While the EEOC determined at the start of the pandemic that Covid-19 infection could establish a direct threat, that determination does not supersede restrictions against employer exclusion of disabled workers. Instead, employers must perform individualized assessments and engage in the interactive process with each employee. See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
Comment: Work adjustments made before vaccines were available, like remote work and enhanced personal protective equipment, are likely to qualify as reasonable accommodations. Employers can rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available.
Employers can consult the Job Accommodation Network (JAN) website as a resource for different types of accommodations, www.askjan.org. JAN's materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.
• If employers and workers are unable to eliminate the direct threat through reasonable accommodation, employers can exclude workers from the workplace.
• Employees can refuse to get a Covid-19 vaccine based on deeply held religious or moral objections to vaccinations; federal and some state laws prohibit religious discrimination and require employers to provide reasonable accommodations for employees’ religious beliefs unless doing so would create an undue hardship. See 42 U.S.C. § 2000e(j); 29 C.F.R.§ 1605.2; State Chart Builder: Religious Discrimination.
Comment: “Religious belief” is defined broadly under Title VII and encompasses beliefs within established, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, as well as beliefs that are new, uncommon, not doctrine of a formal church, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. “Religious belief” also includes non-theistic moral or ethical beliefs as to what is right or wrong that are sincerely held with the strength of traditional religious views. See 29 C.F.R. § 1605.1 (see Smart Code® for the latest cases); EEOC's Questions and Answers: Religious Discrimination in the Workplace.
• Employers can exclude workers from the workplace if accommodating their religious beliefs would create an undue hardship. Federal law defines an undue hardship as anything more than a de minimis burden on employers, but several states have adopted more-specific or more-stringent standards for employers to refuse a religious accommodation request (Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 14 FEP Cases 1697 (1977); BCite Analysis; 29 C.F.R. § 1605.2 (see Smart Code® for the latest cases); State Chart Builder: Religious Discrimination).
• Religious discrimination protections and accommodation requirements can apply even if an employee or applicant does not expressly request an accommodation—employers cannot discriminate against applicants because they need or might need accommodations. See EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 127 FEP Cases 157 (2015); BCite Analysis.
• Employers can require workers to get a Covid-19 vaccine on their own or provide it directly to workers. For either approach, employers must consider the availability of a vaccine and the requirements of disability discrimination laws before implementing any vaccine program.
• Employers that offer a vaccine to workers must comply with the ADA. In general under the ADA, employers may only administer medical examinations that are job-related and consistent with medical necessity. See 42 U.S.C. 12112(d)(4)(B); 29 C.F.R. 1630.14(d).
• The screening questions asked before vaccinations are considered medical examinations under the ADA, and therefore employers that require and administer vaccines must ensure that the screening questions are job-related and consistent with business necessity. To meet this standard, an employer must have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of themself or others. See 42 U.S.C. 12112(d)(4)(B); 29 C.F.R. 1630.14(d) (see Smart Code® for the latest cases); EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
• State laws can impose different or additional requirements on medical examinations. See State Chart Builder: Medical Exams and Tests.
Comment: The ADA's requirements for medical examinations apply even when employers contract with a third party to administer the vaccine. See EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
In certain situations, employer-provided vaccine programs can qualify as a benefit plan under the Employee Retirement Income Security Act (ERISA). ERISA plans are subject to reporting and disclosure among additional requirements. See 29 U.S.C. § 1002.
For more information about ERISA compliance, see ERISA Compliance Quick Checklist.
• Employers can require workers to provide proof of vaccination. Although disability-related inquires are generally prohibited under the ADA, the EEOC released guidance clarifying that requiring proof of vaccination is not a medical inquiry and is permitted under the law. SeeWhat You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.
• Employers must keep all information obtained from employees about their health or vaccination status confidential. Any files or records of workers’ vaccination status must be maintained separately from employee personnel records. See 29 C.F.R. § 1630.14(c)(1); EEOC's Pandemic Preparedness in the Workplace and the Americans With Disabilities Act.
Comment: Although the ADA does allow employers to share disability and health information with managers in certain situations, employers should be cautious about sharing employee vaccination status and vigilant in monitoring and responding to disability-based harassment in the workplace.
• All available Covid-19 vaccines are considered safe and effective in reducing illness from a Covid-19 infection. However, only Pfizer's vaccine has received full approval from the Food and Drug Administration. All other available vaccines are awaiting full FDA approval and have received a temporary Emergency Use Authorization that allows them to be distributed to the public. Because an EUA is less than full FDA approval, employers that require a vaccine authorized under an EUA must inform workers about its EUA status and the safety of a vaccine. See EEOC's What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws; FDA's Emergency Use Authorization for Vaccines Explained
Comment: Although the Covid-19 vaccines are considered safe, there have been some documented adverse reactions. See CDC's COVID-19 Vaccines and Allergic Reactions. It is unclear if employers who require workers to get vaccinated will be liable for injuries resulting from vaccination.
• Employers should consider if the presence of unvaccinated workers would make their workplace unsafe. Under the Occupational Safety and Health Act, employers must provide each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” See 29 U.S.C. § 654 (see Smart Code® for the latest cases).