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.
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.
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 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.