The arrival of the first two COVID-19 vaccines from Pfizer and Moderna (and news that the third vaccine from AstraZeneca may be close behind) is rarely good news in the ongoing fight against the global Coronavirus Pandemic. As vaccine distribution has begun throughout the U.S., and shots are being given to certain high-risk groups including healthcare workers and nursing home residents, employees have begun to ask the question: Can my employer require me to get the vaccine? The short answer is yes, with certain exceptions.
While there is no law or regulation that directly addresses this issue, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency charged with enforcing the nation’s non-discrimination laws, recently issued guidance addressing mandatory COVID-19 vaccination policy issues. The EEOC guidance suggests that employers may require their employees to get a COVID-19 vaccine once they become available as a condition of remaining at or returning to work. But there are exceptions for employees who do not to get the vaccine due to either a medical disability or because of a sincerely held religious belief.
Because some employees may be unable to receive the vaccine due to medical conditions before an employer can exclude that worker from the workplace, the employer must show that the unvaccinated employee presents a significant risk of substantial harm to health or safety that cannot be eliminated or reduced through reasonable accommodations. In other words, the employer must attempt to accommodate an employee who cannot receive the vaccine due to a disability unless there is no reasonable way to do so. Only after conducting a review and finding that the disabled employee cannot be reasonably accommodated can the employer exclude the employee from the workplace. But the decision to exclude the employee does not automatically mean that the employer can simply fire the unvaccinated worker. Instead, the employer has to review and evaluate whether other there are other accommodations that can be made, such as permitting the employee to work, or continue to work, remotely, or having the employee work in another location on-site where the threat is reduced or eliminated.
Employers also must accommodate employees whose sincerely-held religious beliefs prevent them from receiving the COVID-19 vaccine unless doing so would present an undue hardship to the employer. If that is the case, the employer can exclude the employee from the workplace. But just like with a disabled employee who cannot get the vaccine, an employer cannot automatically terminate the employee. Instead, the employer must decide if any other accommodations can be provided to permit the employee to continue working, such as remote work or work in an alternate location.
The COVID-19 pandemic continues to raise unique questions and challenges for workers. We are working hard to stay up to date on the latest changes to the law and regulations, and we are here to help with your employment questions and issues.
