By: Rachel Bender Turpin
A COVID-19 vaccination is finally available, signaling a turning point in the ongoing pandemic and a light at the end of a very dark tunnel. But not everyone is excited about the vaccine; according to recent polling by the Kaiser Family Foundation, about a quarter (27%) of respondents indicated that they probably or definitely would not get a COVID-19 vaccine, even if it were available for free and deemed safe by scientists.
Naturally, this has caused employers to inquire as to the legality of mandating the COVID-19 vaccine for reluctant employees in order to prevent the spread of the disease within the workplace. Vaccination mandates have long been a common health and safety requirement in some fields; healthcare workers, for example, are required to obtain a multitude of vaccinations that are deemed necessary for patient and employee safety. But vaccination requirements for non-healthcare or public safety related jobs are much rarer, causing employers to question their validity.
Fortunately, the Equal Employment Opportunity Commission (EEOC) recently weighed in on this issue, making it clear that employers may legally require employees to take the COVID-19 vaccine, subject to the requirement to provide a reasonable accommodation under the Americans with Disabilities Act (ADA) in the event an employee has a sincerely held religious belief or a disability that prohibits them from being vaccinated. Accordingly, employers can now feel safe imposing COVID-19 vaccination requirements in the workplace—and disciplining employees for not complying—without fear of running afoul of employment laws. For some employers this will mean a requirement for all employees to be vaccinated; other employers will chose to vaccinate only some employees, such as high risk workers like public safety employees or individuals who must work in close quarters with coworkers.
Employers that choose to mandate the vaccine should tread carefully to avoid engaging in unlawful “disability-related inquiries”/“medical examinations” under the ADA. The EEOC has made it clear that administration of a COVID-19 vaccine to an employee by an employer is not a “disability-related inquiry” or “medical examination” for purpose of the ADA, but that pre-vaccination screening questions, such as those asked to ensure there is no medical reason that the employee should not be vaccinated, may constitute disability-related inquiries under the ADA. Accordingly, any such pre-screening questions to be asked by the employer (or a third-party contractor providing the vaccinations on behalf of the employer) must be “job-related and consistent with business necessity.” Employers can avoid any potential ADA issues by not administering the vaccines internally and instead requiring employees to obtain the vaccine outside of the workplace and to provide proof that they have been vaccinated, which is not considered a disability-related inquiry under the ADA.
As always, please consult your legal counsel for advice regarding your rights as an employer. For more information about this post, please contact Rachel Turpin at Rachel@MadronaLaw.com.