As COVID-19 continues to spread in various forms, many employers require workers to get a COVID-19 vaccine. Employees must also submit regular COVID-19 testing and wear masks at all times. It’s in response to President Joe Biden’s vaccine mandate on July 29, 2021, requiring federal employees to get the vaccination or meet other conditions.
Can Employers Require Employees to Get a COVID-19 Vaccine?
This question has become more urgent recently, especially since the Food and Drug Administration gave full approval for the Pfizer-BioNTech vaccine on August 23.
The answer is yes; employers can require employees who work physically to get the COVID-19 vaccine. Before the coronavirus pandemic, other employer vaccine mandates, such as getting a flu vaccine, were already in place.
Federal Vaccine Mandate Standards
According to the Equal Employment Opportunity Commission, a mandatory vaccination program isn’t against the law. However, it must account for legal nuances and potential accommodation obligations.
Some essential standards apply under the federal law for any vaccine mandate. The first standard is that a mandatory vaccination program in the workplace must be at par with the Americans with Disabilities Act (ADA). It must be job-related and consistently apply to business necessities.
Employers must determine the necessity of the vaccination based on facts and circumstances around the workplace and job. Factors to consider include:
- Whether work-related operations and functions take place indoors or outdoors
- The frequency of interaction of unvaccinated employees with other people and the duration
- The most current knowledge about coronavirus, for example, the level of spread in the community
Secondly, the ADA requires employers not to discriminate against employees unable to get the COVID-19 vaccination due to disability and pregnancy. Reasonable accommodations should also be in place for employees who can’t comply because of their religious beliefs about vaccines.
The only exception is when such beliefs would pose a safety threat to the rest of the staff. The employer would then require such employees to wear masks, work remotely, or get periodic COVID-19 tests.
Thirdly, employers must not be discriminatory when applying the vaccine mandate. It mustn’t depend on race, religion, color, genetic information, age, nationality, or sex. The order should also not violate other federal equal opportunity laws.
Limited Inquiry and Maintenance of Confidentiality
While employers may have legitimate business-related reasons to inquire about their employee’s vaccination status, they shouldn’t dig deep into any inquiry. Employers should avoid making medical inquiries against the ADA. Asking for proof of COVID-19 vaccination is permissible, but it shouldn’t prompt an employee to disclose disability-related information.
Employees may also decline to disclose their vaccination status for reasons unrelated to disability. If employers want employees to provide vaccination proof from a healthcare provider, they may not require the employees to provide additional medical information as part of the proof.
Lastly, the EEOC points out that any documentation an employee provides about their vaccination status is medical information and should remain confidential. Employers must control access to this information and limit its usage:- it’s protected data under state law.
Should Employees Get Vaccinated if Employers Make It Mandatory?
Getting vaccinated comes with some definite benefits, but employers must address risks before making vaccinations mandatory. These include:
- Disability considerations and accommodations
- Religious concerns about vaccines
- Medical inquiries under the ADA
- Wage and hour vaccine considerations that require employers to compensate employees for the time they spend waiting and receiving a vaccine under an employer’s directive
- Unionized employees may have the most significant bargaining agreements as far as COVID-19 vaccines are in the picture.
Overall, whether an employer makes it mandatory to get the COVID-19 vaccine or not, they must comply with local and state COVID-19 regulations. It’s also essential to keep up with COVID-19 and other employment laws and developments on our ASAP Payroll blog.
