Uncharted Territory: Vaccines and the Workplace

As delivery of the Covid-19 vaccine moves beyond healthcare workers and senior citizens to the general public, some employers wonder if employees can be required — or decline — to receive the vaccine.

This is uncharted territory. However, based on guidance from the Equal Opportunity Employment Commission and the Occupational Health and Safety Administration, in certain circumstances employers can mandate employees receive the vaccine in order to provide for a safe workplace.

How can you ensure your company is in compliance with workplace regulations, without violating employee rights? First and foremost, follow the guidelines issued by local, state and federal public health authorities.

Which businesses can most reasonably compel workers to receive a vaccine? Restaurants, hotels, retail stores, or similar public-facing businesses may require waiters, servers, front-desk staff, retail clerks or other front-line workers be vaccinated to prevent spread to the public and coworkers.

How or whether back-office staff can be compelled depends on their level of interaction with other workers or the public. What’s more, employees who worked remotely prior to the pandemic and rarely interacted with coworkers, clients or customers might also reasonably claim an exemption.

Employees with legitimate religious beliefs or medical conditions may decline the vaccination under Title VII of the Civil Rights Act of 1964. However, if the employer suspects the employee is being insincere, they can request supporting information. Tread carefully: Compelling disclosure of a disability risks violating the Americans with Disabilities Act (“ADA”).

If the employer agrees with the employee and the vaccine is not required, the employer can provide a reasonable accommodation that would remove that worker from public contact, unless it would pose an undue hardship on the business.
Also beware of offering the vaccine on-site. Pre-screening that inquires about an employee’s medical history, even innocently, may violate their right to confidentiality under the ADA. Instead, ask that employees get vaccinated by their physician or a state or publicly-run facility and provide proof afterward.

Additionally, a company can require vendors or contractors who visit the location or job site and interact with staff or customers to provide proof of vaccination or negative test results, and that they maintain social distancing.

If your business is considering a vaccine mandate, develop clear, consistent and rational written policies. They should address every employee position, from senior leadership down, and avoid even the appearance of discrimination of any protected class. Most of all, have an open dialogue with the team to navigate this uncharted territory together.

If your company’s human resources team needs additional guidance, contact an employment or workplace law firm.

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