Update Jan. 14, 2022:The Supreme Court today blocked the Biden administration’s COVID-19 vaccine-or-test requirement for businesses with at least 100 workers but allowed a similar requirement for health care workers at facilities receiving federal funding to stand.
Vaccines for the coronavirus have been widely available in the U.S. (and the rest of the world) for a while now and have also proven highly effective in controlling the spread of the virus as well as its variants. But the COVID-19 pandemic continues to rage, especially among unvaccinated people.
In order to increase vaccination rates, government officials as well as businesses across the U.S. have tried different approaches, from stressing personal responsibility and launching incentive programs to deploying mobile vaccination units and coordinating with corporate and community partners to encourage vaccine uptake. However, there is still a large segment of the American population that declines to be vaccinated.
This has caused employers to worry not just about the welfare of their staff members and customers but also about potential business interruption. So far, most businesses have encouraged their employees to get vaccinated or comply with a painstaking regimen of testing, practicing physical distancing and wearing masks.
Can employers require staff members to be vaccinated against COVID-19?
As the vaccines for COVID-19 become readily available, an increasing number of employers are asking if they can require workers to get vaccinated — even more so now that the FDA has granted Pfizer-BioNTech vaccine full approval — and what they can do if employees refuse.
According to the Equal Employment Opportunity Commission, the answer is yes. Businesses can encourage or (now) mandate COVID-19 vaccinations as long as their policies fall in line with the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964 and other EEOC considerations.
For mandating COVID-19 vaccine, four key standards apply under federal law:
1. A compulsory workplace vaccination program must meet standards under the ADA of being “consistent with business necessity” and “job related.” This requires making a resolution about the threat to safety posed by unvaccinated staff members. The resolution will depend on facts and circumstances that involve the job and workplace. For instance, whether personnel need to be indoors or outdoors for work, as well as the duration and frequency of an unvaccinated worker’s interaction with other staff members. The resolution must also take into account the latest medical knowledge about COVID-19, such as the level of community spread and the like.
2. Under the ADA, businesses are typically required to provide reasonable accommodations for workers who, due to a disability (including pregnancy) do not get vaccinated against COVID-19.
3. Under Title VII of the Civil Rights Act, appropriate accommodations are also needed for employees who do not comply based on sincere religious grounds. However, if an unvaccinated worker could pose a safety threat, the employer should assess whether a reasonable accommodation could eliminate or reduce that threat.
Business owners cannot mandate vaccines if it leads to employees being treated differently, such as, on the basis of color, race, religion, age, sex, national origin or any genetic information.
4. Employers are allowed to ask employees about their vaccine status or call for the proof of vaccination. The ADA prevents business owners from making disability-related inquiries. However, according to EEOC guidelines, inquiring about COVID-19 vaccination status is not a disability-related inquiry under the ADA, because there are myriad reasons why individuals might not be vaccinated.
