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Can an Employer Require its Employees to be Vaccinated Against COVID-19?
By J. Chadwick Hatmaker
The EEOC advises employers to proceed with caution when asking employees for proof of vaccination. Simply asking an employee about vaccination status or proof of vaccination is not a disability- related inquiry.
J. Chadwick Hatmaker
Woolf, McClane, Bright, Allen & Carpenter, PLLC
Now that the roll-out of Pfizer, AstraZeneca Johnson & Johnson and Moderna coronavirus vaccines are in the process of being administered across the country and employees are starting to come back to work the question arises: as an employer, can you require your employees to be vaccinated against the coronavirus as a condition of employment?
The answer is yes, with some exceptions. On December 16, 2020, the EEOC updated its publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEOC Laws” to include guidance regarding whether or not employers can require employees to receive the COVID-19 vaccine as a condition of employment. This publication is available on the EEOC’s website, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada- rehabilitation-act-and-other-eeo-laws.
With respect to the COVID-19 vaccine, the EEOC states that requiring an employee to be vaccinated does not constitute an impermissible medical examination under the Americans with Disabilities Act (“ADA”) and does not implicate the Genetic Information Nondiscrimination aly-held religious beliefs.
If the employee has an ADA disability that prevents the employee from taking the COVID-19 vaccine, the employer must analyze whether the unvaccinated employee poses a “direct threat” to the workplace due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation,” where the reasonable accommodation would not create an undue hardship on the employer. For example, can the employer reasonably accommodate the employee’s disability and address the health and safety concern by having the employee wear a mask or PPE at all times when the employee is around others? If this reasonable accommodation will not create an undue hardship, then the employer must provide that reasonable accommodation. The employer should conduct an
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