As businesses are reopening, the vaccine is readily available, and companies are eager to get employees back into the office, the question our firm is getting most often is, “Can I require our employees to get the vaccine? And our answer is, “Yes. Butt….” Let’s tackle the “yes” first.”
As you know, as an employer, you need to provide a safe workplace for your employees in order to comply with Occupational Safety and Health Administration’s (OSHA) regulations and standards. And under Equal Employment Opportunity Commission (EEOC), you can require employees get the flu and other vaccines, including now the COVID-19 vaccine to ensure that employees not pose a direct threat to the health or safety of co-workers or the public. There are two exceptions; however, to mandating any vaccine, and those are medical, protected under the Americans with Disabilities Act (ADA), and religious, protected under Title VII of the Civil Rights Act, as well as under various state laws, such as the New York Human Rights Law (NYHRL), which prohibits discrimination on the basis of “age, race, creed, color, national origin, sexual orientation, military status, sex, marital status or disability.” This is the “Butt,” I was referring to earlier.
Employees with underlying health issues, who are pregnant, trying to get pregnant, nursing, or hold certain religious beliefs, may have concerns about getting the vaccine and may be exempt from being required to do so by their employers under federal and state laws. If you do mandate the vaccine, you will need a formal policy outlining the mandate and how employees can request exceptions. Then, if they do, you will need to engage in the “interactive process,” commonly used under the ADA to understand what the employee’s concerns are and whether or not you can reasonably accommodate their request to return to work without getting the vaccine. All of this information is highly confidential and must be kept protected and secure. And it can result in you knowing things about employees, incredibly private information, that you may not or need to know. The concern is what happens when an employee is terminated for performance 6 months down the road…can they argue they were really terminated because their employer knew about their medical condition or religious beliefs, etc.? If they do, will you be able to prove (the burden of proof under discrimination claims falls to the employer not the employee) that this isn’t the case?
We are advising clients to carefully weigh the pros and cons of requiring the vaccine, and if they do decide to mandate the vaccine, to work with us to instill a clear policy and process for managing requests for exceptions.