As if employers did not have enough challenges due to the global pandemic that has continued to decimate most of the world as we start a new year, business owners and corporate executives face another set of decisions concerning whether to require employees to obtain a COVID-19 vaccination. The faster the workforce can get inoculated, the sooner businesses that have been shut down can reopen or ramp up to full staffing in the case of ones that have had furloughs or layoffs.
In general, an employer can require workers to be vaccinated as a condition of continued employment. However, there are significant exceptions for potential concerns employees may have, such as for a medical reason or on religious grounds. Because of the legal ramifications that may result if a business makes vaccinations mandatory, it is likely that most will merely encourage their workers to get immunized rather than issue a company-wide order.
As the Equal Employment Opportunity Commission (EEOC) has historically advised, employers must offer a reasonable accommodation to the employee who objects to getting vaccinated, such as working remotely, as long as the accommodation does not cause “undue hardship” for the employer. If there is no accommodation possible, then an employer may prohibit the employee from entering the premises but not necessarily fire the worker. The employer must see if the employee has any other rights under federal or local laws, including the ability to take unpaid leave under the Family and Medical Leave Act.
Workers seeking an exemption may seek protection under the Americans with Disabilities Act. Under this law, before an employer can exclude a worker from the physical worksite, the employer must determine if the unvaccinated employee presents a significant risk in harm to health or safety that cannot be eliminated or reduced through reasonable accommodations. As a compromise, employers could require such employee to have a temperature check and respond to screening questions before being allowed into the workplace.
Employers with workers who are unwillingly to be vaccinated should consider several options before issuing a mandate. They should make employees aware that are able to make reasonable accommodations, such as offering workspace in an isolated part of the office, allowing such employees to continue working remotely or providing extra personal protective equipment such as face shields and portable air purifiers.
Businesses which are more insistent about having employees prove they have been vaccinated but do not want to directly require vaccines because of potential legal challenges have other options. For example, they could work with the building management companies and request that they mandate it for any people working in their buildings. Some companies may make inoculation voluntary, but make it as easy as possible for workers to get the vaccine. For instance, Ford already has purchased twelve of the ultracold freezers required to store doses of Pfizer’s vaccine so it can provide the shot to employees who want it, thus eliminating one reason employees may have for not getting the vaccine – inconvenience. In any case, both employers and employees should seek the advice of legal counsel for a deeper understanding of their respective rights and responsibilities, and before taking any formal legal action.
