Can a Business Insist on Employee Vaccinations?

With the pain of the pandemic easing, and many businesses returning to normal operations, businesses are revamping their public health strategies. Many have begun to require, or strongly recommend, that employees receive the COVID-19 vaccine when available. But is this legal? And are there any potential ramifications that employers should know about?

Yes, employers can generally require vaccination, with certain exceptions. According to the Equal Employment Opportunity Commission (EEOC), employers can legally require employees to get vaccinated. California’s Department of Fair Employment and Housing (DFEH) elaborated on the issue by releasing the following statement:

“Under [California’s Fair Employment and Housing Act (FEHA)], an employer may require employees to receive an FDA-approved vaccination against COVID-19 infection so long as the employer does not discriminate against or harass employees or job applicants on the basis of a protected characteristic, provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices, and does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).”

Can employers require proof of vaccination? Yes, because the vaccine cards do not disclose any sensitive medical information that might violate state or federal medical privacy laws. The best practice is for employers to accept the cards as proof of vaccination.

What happens if an employee refuses the vaccine? According to Title VII of the federal Civil Rights Act, sincerely held religious beliefs are protected by law. The Americans With Disabilities Act (ADA), another federal law, protects those who cannot get vaccinated due to a medical condition or disability.

If an employee states that they cannot be vaccinated due to a religious reason or medical condition, employers must provide reasonable accommodations unless doing so would result in undue hardship for the employer. These accommodations might include continued remote work or limited contact with others, for example.

Can vaccinated employees refuse COVID-19 testing? No, even after receiving the vaccine, employers can require regular COVID-19 testing of employees. The vaccine was designed to lessen the effects of infection, but technically vaccinated individuals can still become infected and transmit the coronavirus to others.

Can employers ask about COVID-19 symptoms? Yes, employers can request that employees disclose any symptoms such as fever, cough, or shortness of breath.

What other responsibilities does the employer have? When reports of vaccination, testing, or COVID-19 symptoms are received by the employer, they must be maintained as confidential medical records.

Caution is recommended. In the event that an employee refuses the vaccine on grounds of religion or disability, the employer should consult with an employment law attorney immediately to determine what reasonable accommodations can be made. Because “undue hardship” can be difficult to describe and/or prove in court, we strongly recommend that employer’s consult legal counsel before denying an employee’s request for accommodation.

 

Search Larson & Solecki LLP