Mandatory COVID-19 Vaccination Policies: 6 Things to Consider

Vaccination
If you have any questions or need advice, please contact Allan Rooney, Tim Davis, 
Elannie Damianos, or Abbey Docherty or call +1 212 545 8022.

As the COVID-19 vaccination process ramps up, over 8 million doses have been administered in the US as of January 11, 2021, businesses are starting to consider their approach to vaccination policies for their employees. Specifically, should (or more importantly, can) they impose a mandatory policy requiring workers to be vaccinated for COVID-19.  So far, the vaccine has been administered mostly to healthcare workers, and the majority of those were required by their employers. However, this leads to the question, can your employer make you get a COVID-19 vaccination?

The US Equal Employment Opportunity Commission (EEOC) recently released guidance that attempts to address this issue and other COVID-19 vaccine-related questions. Here’s a summary:

Can an employer create and implement a mandatory vaccination policy? 

The answer is a little more complicated than a simple yes or no. Generally speaking, in the US, the employment relationship is “at will,” and employers can terminate employees for any non-discriminatory reason or no reason at all.  Consequently, employers can require that employees receive a vaccination as a condition of employment. However, there are a few exceptions that could exempt you from having to receive a vaccination if your employer makes it mandatory, such as for a disability or a sincere religious belief.

Can you restrict non-vaccinated employees from the workplace?

To exclude an employee from the workplace for not meeting a vaccination requirement, the employer must show that they pose a “direct threat” to other employees due to the “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” However, there are still grey areas and other laws to be considered before an employee can be terminated.

Can an employer require proof of vaccination from employees?

EEOC guidance states that requiring employees to provide proof of a COVID-19 vaccination is allowable. However, this is complex because employers must be mindful of certain follow-up questions, such as asking employees why they did not receive a vaccination, which may provoke information about a disability, which would then be subject to Americans with Disabilities (ADA) protections.

What are other protections exist?

Americans with Disabilities (ADA) Act protects some people from mandatory vaccination. The Americans with Disabilities Act requires employers to provide “reasonable accommodations” to workers with medical conditions that would make them unable to take a vaccine. For example, the FDA has recommended that people with certain allergies not get a coronavirus vaccination, but there may be other reasons as well, such as having a compromised immune system.

Civil Rights Act protects people with religious beliefs opposing vaccines.

Even if you don’t have a medical reason for not wanting to get vaccinated for COVID-19, you may be able to object on other grounds — Title VII of the Civil Rights Act of 1964 protects people who refuse to take a mandatory vaccine on account of sincerely held religious beliefs.

What happens if an employee objects to receiving a vaccination when the employer requires it?

Just because you have a valid medical or theological objection to receiving a coronavirus vaccination doesn’t mean your employer has to let you continue working under the same conditions you’ve been used to. All of the above objections require employers to make “reasonable accommodations” if an employee objects to receiving a vaccination. Such accommodations could include allowing the employee to work remotely or take a leave of absence.

So, what’s the bottom line?   

The bottom line is that there isn’t a bottom line. While the guidance from the EEOC provides employers with some clarification on certain elements of a vaccination policy, their analysis is complicated and extremely nuanced. Employers need to proceed with extreme caution when implementing a mandatory COVID-19 vaccination policy. As this is very new ground, we expect that further guidance will be forthcoming, and the issue will evolve.

If you have any questions or need advice, please contact Allan Rooney, Tim Davis, Elannie Damianos, or Abbey Docherty or call +1 212 545 8022.

This article is one of a series intended to de-mystify common legal issues for the non-lawyer and entrepreneur audience – they are designed to foster discussion and is by no means exhaustive. These materials are for informational purposes only. Nothing herein is intended nor should be regarded as legal advice. The distribution of this article to any person does not establish an attorney-client relationship with our firm. Rooney Nimmo assumes no liability in connection with the use of this publication. This bulletin is considered attorney advertising under the applicable rules of New York state. Rooney Nimmo UK is regulated by the Law Society of Scotland and Rooney Nimmo US by the New York rules of professional conduct. All attorneys and solicitors listed in this firm stipulate their jurisdictional limitations. Rooney Nimmo in the USA is a law firm registered as a New York State professional corporation.

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