The Legality of an Employer-Mandated Covid Vaccine
Generally, Employers Can Make The Vaccine Mandatory
Since there are COVID-19 vaccines now available, are employers permitted by law to require employees to get vaccinated? The simplified answer is yes, in an employment at will state like Georgia, employers do have the right to mandate that their employees receive the vaccine. Employees who want to continue working at that employer will have to get a vaccine and can be fired, without legal recourse, if they do not.
Employment At-Will
Employment is often at-will, which means it is possible for either the employee to quit and walk away or for the employer to fire them at any time for no reason or for any reason. The employer will set the working conditions, and as long as those conditions meet federal law and guidelines, employees must abide by the employer’s standards, which will include health and safety guidelines and conditions. As we all know, the coronavirus pandemic is a major health and safety issue for every workplace.
A written fixed-term employment agreement, on the other hand, might not accommodate the unilateral inclusion of a mandatory vaccine requirement if this can be construed as a material term.
Civil Rights Legislation
According to guidance from the Equal Employment Opportunity Commission (“EEOC”) which is the federal agency that enforces various civil rights laws regarding discrimination in employment, generally barring specific exceptions, it is legal for employers to require their employees to be vaccinated against covid.
There was initially concern that requiring a vaccine could violate the Americans with Disabilities Act (“ADA”). However, that law prevents employers from conducting certain types of medical examinations, not including requiring vaccines that help to protect against COVID-19. By requiring the vaccine, the employer is not looking for any information about a person’s current health status or impairments, and as such, it does not constitute a medical examination. Therefore, per EEOC guidance at the time of publishing, it is not in violation of the ADA to mandate the vaccine and obtain employee certification of having been vaccinated.
Exemptions For A Mandatory Vaccine.
However, employers still must account for legal nuances. An employee with a disability and who has a medical reason to not get a vaccine will likely qualify for exemption for medical grounds under the ADA. Those who have a sincerely held religious belief that does not allow vaccines could get a religious exemption under Title VII of the Civil Rights Act of 1964 (“Title VII”). Those who fall into either or both of these categories and who cannot be vaccinated will want to seek an exemption based on those grounds.
Upon requesting an exemption, the employer must engage in an interactive conversation with all stakeholders to determine whether a reasonable accommodation exists. Some of these reasonable accommodations might include the use of personal protective equipment, working separately from others, or working from home, for example. As long as there are means to accommodate unvaccinated employees that are not unduly burdensome to the employer, it would be illegal to terminate such an employee.
Generally, Employers Can Decline To Make The Vaccine Mandatory
A common question addresses what would happen if an employer discovers that a worker cannot be vaccinated because of a disability or religion, but this creates a risk in the workplace. In these cases, employers are not allowed to exclude that employee from the job or take any other action unless they do not have any other means of providing reasonable accommodations that could help reduce the risk presented to themselves and that they present to other people.
But what about the employer’s general duty to maintain a safe workplace free from known hazards under the Occupational Health and Safety Act (“OSHA”)? There is no federal mandate that requires all employers to make their workers get vaccinated. They can decide on a case-by-case basis. Employers will have to determine what makes the most sense of them and their employees. The location and type of work that is being done will often factor into whether an employer should require vaccination. Those companies that are public-facing and have regular in-person interactions will be more likely to require vaccination from the employees. It provides added safety, and it is something that many of the customers and clients will expect. Those that do not necessarily have face-to-face encounters might not require vaccination.
Potential Pitfalls Requiring Other Vaccine Considerations
If an employer is requiring that employees receive vaccines, they may want to consider paying the employees for the time it takes to get the vaccine. Often, people have to take time out of their day to wait in line for the vaccine.
Federal law entitles employees to compensable work time for these waits if the employer requires it. If the employers do not provide payment for the time that it takes to get the vaccine, they would violate the law, which can carry heavy penalties. If there is a union involved, there could also be other collective bargaining agreements or further obligations the employer would have to meet.
Some employers might want to reduce the wait time by having a third party administer the vaccine at their workplace. They can schedule the appointments, and it could reduce the amount of time that it takes to get everyone vaccinated. However, they will want to determine if any supposed injuries from getting the vaccine might trigger their worker’s compensation insurance liability coverage. Employers should check with their insurance company prior to making a decision.
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As more places start to open, and as more people go back to in-person work with the vaccines readily available, employers should seek counsel about what they can do within the confines of the law in their unique workplace.
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