Should Companies Require COVID-19 Vaccines?

Many employers are wondering whether they may require their employees to be vaccinated from COVID-19. The short answer is yes.

Generally, employers may require employees to be vaccinated, so long as the vaccination is job-related, consistent with business necessity, and the employer makes reasonable accommodations for disabilities and sincerely held religious beliefs. But, perhaps the better question is should you require it?

Business Necessity

Under the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA), an employer may require a vaccination or medical exam when it is "job-related and consistent with business necessity." As such, whether an employer may require a COVID-19 vaccine is likely to turn on questions such as: (1) Does the employee work in a high-risk setting (such as in a hospital or health care facility)? (2) Does the employee often interact with the public (such as a cashier at a grocery store)? (3) How effective is the vaccine?

The EEOC has determined that COVID-19 meets the "direct threat" definition under the ADA, which provides employers greater latitude in requiring medical exams and health-related questions in the workplace. For instance, this is why employers may mandate temperature screens at work related to COVID-19. It is likely that this same "direct threat" standard will support an employer's right to require employee vaccinations. In theory, this would mean the employer could send someone home without pay or terminate them if they ultimately refuse to take the vaccine.

Moreover, the EEOC issued updated guidance regarding how the COVID-19 vaccine interacts with the ADA. This guidance supports that employers can require COVID-19 vaccinations, at least in some circumstances. You can read the guidance here. 

Reasonable Accommodation

Even if employers can require employees to take the COVID-19 vaccine, they should expect a flock of requests for exceptions or "reasonable accommodation."

Specifically, employers may receive a request for an accommodation based on a disability or medical condition. You should handle these requests as you normally would under the ADA and FEHA, by engaging in an interactive process with the employee to determine whether you can provide a reasonable accommodation that allows the employee to perform the essential functions of the job. You may request specific information from the employee, including the nature of the limitation or disability and the difficulty or issue that the vaccination causes.

Title VII and the FEHA also require employers to provide accommodations for sincerely held religious beliefs. As a practical matter, you should assume that requests for religious accommodations are based on sincerely held beliefs because the term "religion" is construed broadly under state and federal law.

Practical Considerations

Employers should also consider employee morale, fears, and concerns. Some employees may be fearful about vaccination side effects. Others may be open to taking the vaccine but may want to wait until it has been available for a while.  

When the time comes, employers should consider explaining their rationale to employees regarding why the vaccine will or will not be required. Prior to the decision, you may also invite employees to raise their thoughts or concerns in a supervised and productive setting. You could send out an anonymous poll to get your employees' thoughts on this very new issue. Buy in will go a long way in ensuring people are "heard" on the issue and understand the employer's goals or perspective.

Consult Legal Counsel

When it comes to COVID-19 vaccinations, the circumstances are novel and there is no precedent on this issue. That said, we recommend you consult legal counsel if you choose to send someone home without pay or terminate an employee who refuses to take the vaccine, or if you deny a request for a religious or medical/disability accommodation.

This is what the EEOC states about it:

“If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”

Your HR Directors are here to help you navigate through the ever-changing landscape of COVID-19 in the workplace. As we continue to receive guidance from government agencies on COVID-19 vaccinations, we will share that new information with you.

Stay tuned!