As COVID-19 vaccines become slowly available, many employers are asking if they can require employees to get vaccinated, and what they can do if workers refuse to take the vaccine, among other questions.
Employers may encourage or possibly require COVID-19 vaccinations, but employer policies must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and other workplace laws, according to the U.S. Equal Employment Opportunity Commission (EEOC).
An employee with a religious objection or a disability may need to be excused from the mandate or otherwise accommodated. Additionally, if an objecting employee is a union-represented employee, the employer may need to bargain and reach an agreement with the union before mandating employee vaccines.
The EEOC — the federal government agency that enforces federal laws prohibiting employment discrimination – has posted an updated and expanded technical assistance publication addressing questions arising under the Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic. The publication is free online and may be accessed at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
The publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” now includes a new section providing information to employers and employees about how a COVID-19 vaccination interacts with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). This includes issues pertaining to medical pre-screening questions and employer accommodations for those unable to receive a vaccination.
Among other issues, the EEOC states in the guidance that:
- Employees who become ill with symptoms of COVID-19 may be instructed by their employer to leave the workplace and stay home.
- Employers may take screening steps to determine if employees entering the workplace have COVID-19, because an individual with the virus will pose a direct threat to the health of others. Therefore, an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.
- An ADA-covered employer may take the body temperature of employees entering the workplace during the COVID-19 pandemic. However, employers should be aware that some people with COVID-19 do not have a fever.
- Under the ADA an employer may not require antibody testing before permitting employees to re-enter the workplace. An antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).
- Employers may ask all employees who will be physically entering the workplace if they have COVID-19 or symptoms associated with COVID-19, and ask if they have been tested for COVID-19.
- If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean that the employer may automatically terminate the worker.
In response to inquiries from the public, the EEOC has also provided additional resources on its website related to the pandemic in an employment context. All EEOC materials related to COVID-19 are collected online at www.eeoc.gov/coronavirus.
