Distribution of the COVID-19 vaccine is well underway. We all hope this is a means to an end of social restrictions and making our way back to life as we once knew it.
According to the Centers for Disease Control and Prevention, more than 19% of the U.S. population is fully vaccinated. While more and more Americans are willing to get the vaccine, there are still many who remain hesitant. What does this mean for employers that want to get their employees back to work?
Employers have a duty to ensure that the health and safety of their employees is a top priority. According to the Equal Employment Opportunity Commission, while employers can encourage or even require their employees to get vaccinated, they must comply with the American Disabilities Act, Title VII of the Civil Rights Act of 1964 and other workplace laws.
When evaluating whether to mandate employees receive the vaccine, there are a few notable exceptions and circumstances that employers will need to consider in developing a policy.
Medical/disability — Under the ADA, workers may opt out of receiving the COVID-19 vaccine for legitimate medical reasons. This includes an employee who may have a severe allergy to the vaccine or to an ingredient in the vaccine, immune system disorders, etc. In this circumstance, the employer would have to engage in good faith in the interactive process and, if necessary, provide a “reasonable accommodation,” which may include allowing the employee to work remotely or instituting strict safety protocols relating to that employee that would not put the employee or others at risk.
Religion — If employers decide to require its employees to receive the COVID-19 vaccine they will need to be prepared to address and respond to objections based on “sincerely held religious beliefs.” Personal beliefs, such as veganism or ethical objections to the vaccine, are generally not going to be considered a sufficient reason to refuse the vaccine. If an employee establishes and proves such a sincerely held religious belief the employer must evaluate the information provided and offer reasonable accommodations for the employee to continue working. The employer may require the employee provide written materials to support the religious belief. The employer may invoke a defense of “undue hardship” as defined by Title VII, which generally means that providing the accommodation would result in significant difficulty or expense to the employer.
Human rights/bodily integrity — An employer deciding whether to require its employees receive the COVID-19 vaccine will have to evaluate and weigh concerns of the employees’ rights to bodily integrity against the right of other employees and public safety. The employer must also consider the risk that an employee outbreak could result in shutting down the company, even temporarily.
Vaccine identification — With more and more people getting vaccinated, the question arises about whether employees can or should “advertise” their vaccinated status. Companies are already selling masks, bracelets and pins for people to wear to show they’ve been vaccinated. Some rideshare drivers are displaying their vaccination card in the back seat for passengers. This raises the question of whether employers can require their front-facing employees to “advertise” vaccination status. For example, at a restaurant, seeing that a server is wearing an identifier that says “COVID-19 Vaccinated” might give guests comfort knowing the person serving them has received the vaccine. The EEOC COVID-19 guidelines do not address this issue. However, because the Health Insurance Portability and Accountability Act prevents employers from disclosing protected health information about an employee, it is best for employers to make wearing such status notices voluntary and not mandatory.
In closing, if an employer chooses not to mandate the vaccine, there are programs or activities they can implement to encourage employees to get it. For example, they can offer incentives (cash, prizes, days off) or even make it a contest or game within the company. Requiring the vaccine can be a tricky situation and employers need to give it thought before making any definitive decisions.
Either way, employers will have to know how to manage a potentially mixed workforce of those who have been vaccinated and those who have not.
Editor’s Note: Debora Verdier is a senior member at The Cavanagh Law Firm in Phoenix. She defends employers in all types of labor and employment disputes pending before the Equal Employment Opportunity Commission, state and federal courts and private arbitrators. Verdier served as a judge pro tem in the Maricopa County Superior Court and is an adjunct professor at the Sandra Day O’Connor College of Law at Arizona State University where she teaches a practical skill course called “The Litigation Experience.”