Can Employers Make the COVID Vaccine Mandatory?

Lorna Geiler speaks about whether employers can make the COVID vaccine mandatory.

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) provided its first specific guidance to employers regarding the COVID-19 vaccine. The primary question for a lot of employers is – Can we make the vaccine mandatory? The short answer is, maybe. Generally, an employer can require its employees to take the vaccine. There are certain exceptions provided by applicable law, such as the Americans with Disabilities Act (ADA), Title VII and the Illinois Human Rights Act.

The ADA and the Human Rights Act require employers to reasonably accommodate those employees with a known disability. In this case, the justification for mandating the vaccine is to prevent an individual from posing and direct threat to the health and safety of others in their workplace. If, however, this specifically impacts and individual with a disability, the employer is required to show that the unvaccinated employee poses a “direct threat” to the health and safety of themselves or others that cannot be eliminated by reasonable accommodations. Reasonable accommodations could include, among other options, remote working or a temporary leave of absence.

Similarly, Title VII provides certain religious exemptions. If an employee has a sincerely held religious belief, practice or observance that is contrary to receiving a vaccine, the employer must provide a reasonable accommodation for those beliefs unless it would pose an “undue hardship.” An undue hardship, for the purposes of a religious belief in need of accommodation is “more than a de minimis cost or burden to the employer.”

Employers may require documentation to support the request for a disability or religious exemption. Employers may also exclude workers where there is no reasonable accommodation possible. It is important to note that termination exclusion, not termination, is the likely approach. In other words, requiring an employee to take a leave of absence, as opposed to terminating the employee, is the EEOC supported approach.

Administration of the vaccine provides its own liability hazards. Prior to the administration of this vaccine, there are certain medical questions that are necessary. Traditionally, the EEOC has found that while a vaccine is not a medical examination, the pre-screening questions may trigger that ADA’s prohibitions on disability related inquiries. Therefore, if the employer administers the vaccine itself or retains a contractor to do so on its own behalf, the employer is required to show that the pre-screening questions are job-related and consistent with business necessity.

Essentially, the employer must demonstrate that if an employee refuses to answer the pre-screening questions and, therefore, cannot receive the vaccine, the employee will pose a direct threat to the health and safety of himself or others.

The triggering of the ADA and the pre-screening questions can be avoided if employers make the vaccination voluntary or the employee is required to receive the vaccine from a third party with whom the employer does not have a contract. In other words, if employees are required to provide proof of vaccination, as opposed to receiving the vaccine from an employer contractor or the employer itself, the issue relating to the pre-screening questions is avoided.