THE LATEST GUIDANCE AND ISSUES TO CONSIDER RELATED TO THE COVID-19 VACCINE

 

The roll out of the Covid-19 vaccine brings hope to many, but as in the case of other vaccines, such as those for measles and flu, individuals who generally are not proponents of vaccines may be reluctant to get vaccinated.  

COVID-19 Vaccine Information for Employers

We have put together a list of the latest information on the workplace requirements employers should consider related to the COVID-19 vaccine.

Can an Employer require Employees to get vaccinated against COVID-19?

Generally, the answer is yes, but with exceptions.

The U.S. Equal Employment Opportunity Commission (EEOC) has released guidance clarifying that employers can generally require employees get vaccinated as a condition of entering the workplace.

This stands true UNLESS an employee cites a disability or sincerely held religious belief.

What does the employer do if an employee indicates he/she is unable to be vaccinated because of a disability?

The EEOC’s recent guidance states that employers are allowed to have a qualification standard, which can include a requirement that an individual not pose a direct threat to the health and safety of individuals in the workplace.

However, if this qualification standard tends to screen out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat.

This threat must be due to a significant risk of substantial harm to the health or safety of the individual or others that can’t be eliminated or reduced by reasonable accommodation.

Guidance on Employee Exemptions related to the COVID Vaccine

In other words, the employer must conduct an individualized assessment in determining whether a direct threat exists. Employers should check with their legal advisors or HR professionals for EEOC guidelines regarding direct threat assessments.

If a direct threat exists that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace. However, that does not mean the employee may automatically be terminated.

Employers must analyze accommodation requests and identify options that do not constitute an undue hardship (significant difficulty or expense).

One obvious example of an accommodation is working remotely.

Failure to analyze and implement reasonable accommodations could lead to employer liability under the ADA and other applicable laws.

Can employers enforce mandatory COVID-19 vaccines

What about the case of an employee who indicates he/she is unable to be vaccinated because of a sincerely held religious belief or practice?

The same analysis as in the case of a disability claim applies. Although, the guidelines for what constitutes a sincerely held religious belief or practice are generally broad and somewhat vague.

This is given the fact that the definition of religion or religious practice is also broad and protects a range of beliefs and practices.

Unless the employer has a very detailed objective basis for questioning the sincerity of the claim of religious belief or practice, employers should tread lightly in this area.

Issues with Mandatory Vaccine Programs

While employers may have a mandatory vaccine policy, whether employers should create such a policy raises practical issues. The answer to this question will vary depending upon the industry and employer.

To provide some guidance, we’ve put together a list of the most practical issues with mandatory vaccine programs below. 

Vaccine Availability

Many employees may not have access to vaccines for months. Any vaccination policy must take into account vaccine availability.

Number of Exempt Employees

How many reasonable accommodation requests might an employer have to address if employees claim a disability or religious belief exemption?

Risk of Employee Loss

How many of the employer’s employees might be concerned with getting the vaccine, particularly when first available? This is not because of a disability or sincerely held religious belief but because of general concern over the efficacy, side effects, etc. Does the employer want to be in a position of deciding whether to terminate good employees who refuse, without a recognized exemption, to get the vaccine?

Additional Considerations related to COVID Vaccines

Another question/risk to consider when determining a mandatory vaccination program for employers relates to adverse reactions.

For example, if an employee has an adverse reaction to the vaccine that they were required to get under a mandatory policy, is this considered a workplace injury?

COVID-19 Vaccine: Best Practices for Employers

We address some of the best practices for employers going forward during the COVID-19 pandemic.

TIP #1 – ADDRESS YOUR REASONABLE RISK

Employers should assess the extent to which unvaccinated individuals in their particular workplace pose a direct and significant threat to the health and safety of others in the workplace that can’t be eliminated or reduced by reasonable accommodations.

This assessment for some workplaces, such as direct infectious patient care centers, is much easier than trying to assess a mandatory vaccination policy in a professional office setting.

Employers considering mandatory vaccinations for their workplaces should enlist the aid of human resource and legal professionals in making this assessment.

TIP #2 – PROVIDE EDUCATION AND RESOURCES

For many employers, providing education and encouragement to employees is the best course of action.

Giving employees access to information regarding how, where, and when vaccinations are available will go a long way towards creating a safe workplace.

This also includes providing employees with flexibility in their schedules so that they can make vaccine appointments.

By Jane I. Milas, Garcia & Milas Managing Director 

Business and Employment Law Attorneys in CT

For help navigating the EEO laws related to mandatory COVID-19 vaccinations, the business and employment attorneys at Garcia & Milas are ready to assist employers when making an assessment.

Garcia & Milas Law Firm has seasoned Business and Employment Law Attorneys in New Haven, Connecticut and surrounding areas. We advise and represent clients in a variety of business employment contexts.

Garcia & Milas practices before administrative tribunals and in state and federal courts. Learn more about our Labor and Employment Law Practice.

Jane Milas Attorney New Haven, CT

Jane Milas

Managing Director

Jane I. Milas is the Managing Director of Garcia & Milas Law Firm located in New Haven, CT. She regularly advises employers on employment issues impacting their businesses, as well as assists them in complying with federal, state, and local labor and employment laws. Ms. Milas has been ranked as a New England Super Lawyer for 10 years.

This publication is for general information purposes only and is not intended to constitute legal advice.  The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.

Jane Milas

Jane Milas

Jane I. Milas is the Managing Director of Garcia & Milas Law Firm located in New Haven, CT. She regularly advises employers on employment issues impacting their businesses, as well as assists them in complying with federal, state, and local labor and employment laws. Ms. Milas has been ranked as a New England Super Lawyer for 10 years.

Leave a Reply

Garcia & Milas Statement: The Rule of Law in Light of Recent Events
This is default text for notification bar