Can employers require COVID-19 vaccines?

Photo: Mick Haupt

On the heels of the CDC’s announcement that people who have been fully vaccinated “can resume activities without wearing a mask or physically distancing” with certain exceptions, many employers are asking whether they can require employees to get vaccinated and what they can do if they refuse.

The short answer is that yes, employers may encourage and even require COVID-19 vaccinations of their employees, as long as they make exceptions for disability and religious beliefs.  (See EEOC FAQ) There may also be some limitations and further negotiations needed when a union is involved.

Disability Exceptions

Employer policies regarding vaccination must comply with the Americans with Disabilities Act (ADA). Under the ADA, an employer can have a workplace policy that includes "a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” (42 U.S. Code § 12113) However, if the vaccination policy adversely affects an employee with a disability, it is the employer’s responsibility to find a reasonable accommodation that eliminates or reduces that threat.

The Equal Employment Opportunity Commission (EEOC) has indicated, "Managers and supervisors … should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration." (See EEOC FAQ) Then the company and employee should engage in an interactive process to identify a workplace accommodation that mitigates the risks under the specific circumstances of the business, the employee’s specific role and responsibilities, etc. while not being an undue hardship on the company.

Ultimately, a company can create a policy that requires vaccination, but needs to be careful when people are asking for an exception to recognize when there are any medical or disability related issues at play. 

Religious Exceptions

A vaccination requirement must also comply with Title VII of the Civil Rights Act of 1964 (Title VII), which requires an employer to accommodate an employee's sincerely held religious belief, practice or observance, unless it would cause an undue hardship on the business. Religious belief is broadly defined, and the EEOC has stated “the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” (See EEOC FAQ)

A similar interactive process should take place in determining what accommodation can be made for the employee based on his or her specific job responsibilities, interaction with other employees and customers, etc.

"If an employee cannot get vaccinated because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, an employer could exclude the employee from physically entering the workplace," said Johnny C. Taylor, Jr., SHRM-SCP, the Society for Human Resource Management's president and chief executive officer. "But this doesn't mean an individual can be automatically terminated. Employers will need to determine if any other rights apply under the EEO laws or other federal, state and local authorities." (See SHRM Resources)

Other Objections

Even beyond the legally protected exceptions of disability and religion, vaccinations generally and COVID-19 vaccinations are especially controversial, and there is a plethora of other objections employees may have to receiving a COVID-19 vaccine.  In setting up a vaccination policy for your company, you want to think seriously whether you are prepared to lose employees over the policy and how your policy will affect your company’s overall morale.

Key Takeaways

When determining and implementing your company policy on COVID-19 vaccines, make sure you consider the following:

• Seriously consider the importance of the vaccination to the operation of your business and how far you are willing to enforce a vaccination requirement

• Put the policy in writing that is comprehensive, clear, and available to all employees

• Consider ways to incentivize employees who get vaccinated, rather than discipline those that don’t

• Make obtaining vaccine as easy as possible for employees

• Make efforts to help employees understand how vaccinations will make for a safer workplace

In navigating this controversial topic of to vaccinate or not to vaccinate, employers have a lot of freedom legally to set up a policy that fits the specific needs and risks of their business, always being careful to provide exceptions for disability and religious reasons.  However, businesses should seriously consider the threat not being vaccinated poses to their specific business and how their employees generally feel about the COVID-19 vaccine for general reasons in determining whether to make that policy a hardline requirement, a request, an incentive program, or some other variation.