The federal government has recently provided clarity regarding whether employers can require their employees to get the COVID-19 vaccine through a mandatory vaccination policy.
In guidelines issued in mid-December 2020, the US Equal Employment Opportunity Commission (EEOC) stated that employees could be barred from the workplace if they refused the vaccine. This is an important decision because the EEOC is the federal agency that enforces laws against workplace discrimination including thorny medical and privacy issues covered by the Americans With Disabilities Act of 1990 (“ADA”).
The ADA limits employers’ ability to require medical examinations like blood tests, breath analysis and blood-pressure screening. These are procedures or tests, often given in a medical setting, that seek information about an employee’s physical or mental conditions. The EEOC stated that the administration of a COVID-19 vaccine to a worker by an employer doesn’t fit that definition, “[i]f 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.”
The ADA allows an employer to have a qualification standard for employees that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” A mandatory COVID-19 vaccination policy would fall under this safety-based standard. To administer the vaccination program, an employer must consider employees who are unable to be vaccinated due to a disability, advice of a medical provider, or religious beliefs.
For these employees, the employer must explore reasonable accommodations. To bar an employee from the workplace, the employer must show that an unvaccinated employee would pose a direct threat due to 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.”
Even so, employers may need to be careful about how they handle the vaccination process. In the event that an employer can show that there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.
Here at Liff, Walsh and Simmons, my colleagues and I have helped many business owners determine their best options and opportunities to successfully navigate their way through the pandemic. If you have questions about a particular business issue, or would like more information about the legal responsibilities and rights of being an employer, email me at Jcrossan@liffwalsh.com or call me direct at (443) 569-7264.
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