By: Joshua C. Black, Esq.
Nearly half of all Americans - roughly 42% - said they would not get a free government-approved COVID-19 vaccine according to a Gallup research poll conducted in late October of this year. While the number of people willing to receive the inoculation has increased slightly over the past month, the question still looms about an employer’s right to require an employee to get vaccinated against their will. Many have been looking to the Equal Employment Opportunity Commission (EEOC) for guidance on whether or not an employer can require its employees to get the vaccine as a condition of continued employment.
This week, the EEOC offered guidance on this very topic, saying business owners are obligated to ensure a safe work environment in which "an individual shall not pose a direct threat to the health or safety of individuals in the workplace."
According to the EEOC, this means a company can require its workforce to get the COVID-19 vaccine and ban them from the workplace if they refuse. It also impacts the hiring process if a potential employee is unwilling to get vaccinated or show proof of previous vaccinations.
While it's unlikely the federal government will require people to get the shot at this point, it is plausible for private-sector employers, healthcare facilities and educational institutions, like public and private schools as well as universities, to mandate that employees be vaccinated to increase the safety of both the workplace and stakeholders.
Additionally, companies can terminate employees who are unwilling to follow health and safety rules and regulations in the workplace – including mandatory inoculations.
It would not be unprecedented for an organization to mandate a vaccine such as the COVID-19 vaccine. Currently the Occupational Safety and Health Administration (OSHA) has a list of vaccinations employers are allowed to require. These include hepatitis, tuberculosis, flu, and measles, mumps and rubella.
Despite the green light from the EEOC, there are still situations where an employer will need to make an exception to such a policy. Under the Americans with Disabilities Act, employees who do not want to be vaccinated for medical reasons can request an exemption. To receive a medical accommodation under the ADA, employees must establish they have a covered disability.
Additionally, under Title VII of the Civil Rights Act, if taking the vaccine is a violation of a sincerely held religious belief, employees can opt out of vaccine mandates with a religious exemption request. An employer isn't required to grant a religious accommodation if doing so would pose a hardship to their business.
With the COVID-19 vaccine in short supply for the moment, employers have the opportunity to develop a plan for vaccine mandates specific to their businesses. The Biden Administration may also release more guidance or legislation on workplace safety after the first of the year which could alter this analysis should new rules or regulations be adopted.