How Should Employers Deal with COVID-19 vaccinations?
COVID-19 vaccines may be something that you require of your employees, depending on the nature of your industry. It is vital that you understand your legal rights as well as your employees’ legal rights regarding this issue.
The Equal Employment Opportunity Commission (EEOC) has established guidelines that can help employers understand how COVID-19 vaccinations relate to employment laws.
Medical Screening and COVID-19 Vaccinations
The Americans with Disability Act (ADA) prohibits employers from giving employees medical examinations, and screening questions could be considered a medical examination. Therefore, as an employer, you cannot ask your employee about medical conditions as part of screening for receiving the vaccine. However, employers can require that employees receive vaccinations to make the workplace safer. Yet some employees may have disabilities, such as potential allergic reactions, that could put them at risk for receiving the vaccine. Vaccines would not be administered to such employees.
Employers can avoid medical screening by having third parties, such as doctors or pharmacists, handle the screening and vaccinations.
In addition, if you offer vaccinations to employees on a voluntary basis, and the employee voluntarily agrees to answer pre-screening questions related to disability or other reasons, you are not liable. However, if an employee decided not to receive the vaccination, it would be illegal to engage in retaliation, intimidation or threats against him or her for refusing the vaccine.
The Vaccine and Grounds for Job Termination
A disability or a sincerely held religious belief, practice or observance may be reasons that employees choose not to receive vaccinations. Employers must make reasonable accommodations, whenever possible. If you can make a reasonable accommodation, it would be illegal to terminate the employee. However, the accommodation must not be a hardship for the employer. On the other hand, if you cannot make a reasonable accommodation, you should consult with an employment law attorney to review the situation and ensure that termination would not be in violation with any other EEO, federal, state and local laws.
To defend your rights against retaliation claims for firing employees over a lack of vaccination, you would have to prove existence of the following facts:
- A direct threat existed
- What the nature and severity of the potential harm was
- The likelihood that potential harm would occur
- That imminence of potential harm existed
- What the duration of the risk would have been