With the rollout of the COVID-19 vaccines, employers are faced with myriad questions around when – and if – they should have a vaccination policy for their workplace. Unfortunately, there is no “one size fits all” approach. Whether a vaccine policy, and which type of policy, is right for your workplace depends on what industry you’re in, your state restrictions, the level of risk to your employees, your workplace culture, your ability and desire to track employee vaccinations, and numerous other considerations.
In addition, regardless of the type of vaccination policy you implement, you need to be aware of potential pitfalls associated with exemption and accommodation requests, employee privacy concerns, unwittingly violating the Genetic Information Nondiscrimination Act, and running afoul of wage and hour laws. It is not as simple as telling your employees to go get vaccinated.
Can you require employees to vaccinate?
The U.S. Equal Employment Opportunity Commission (EEOC) has not issued guidance regarding a COVID-19 vaccine. However, with the H1N1 flu pandemic of 2009, the EEOC stated employers could require employees to get the flu vaccine, as long as they provided a reasonable accommodation to employees with religious objections and disabilities under Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA), further discussed below.
The EEOC is likely to issue guidance related to the COVID-19 vaccine as it did with the H1N1 flu vaccine; however, until that time employers should evaluate whether it may require employees to get the COVID-19 vaccine by using the ADA analysis for vaccines generally. Under the ADA, vaccinations are considered a “medical examination.” As such, consistent with requiring any medical examination under the ADA, employers must show the vaccine is job related, consistent with business necessity or justified by a direct threat, and no broader than necessary.
Read our more on this insight here.
How we can help.
But don’t fret! We’ve got you covered! Download our COVID-19 Vaccine and the Workplace: Employer Considerations and Responsibilities, Checklist, and Frequently Asked Questions. This discusses all the issues listed above and more, includes a Checklist for Employers Planning COVID-19 Vaccinations, and has Employer FAQ’s About COVID-19 Vaccinations.
As always Innovative is here if you need us.