Companies are starting to reopen their offices, and move from entirely remote work to a hybrid model. This is leading many employers to wonder whether they can require employees get the COVID-19 vaccine before they can return to work. Companies must adhere to the EEOC guidelines on the matter, but the legalities are actually quite solid.
Can Employers Ask Employees if They've Had the Vaccine?
Absolutely. Employers are also allowed to ask why they have not had the vaccine, with some limitations.
Basically, you can ask if they have not had the vaccine for personal, medical, or religious reasons. If they answer medical, you are not allowed to ask for details. You can ask for vaccine status verification. Digital passports are being worked on, but for now, asking for a COVID-19 vaccine card is reasonable. (It's a good idea to recommend to employees that they get the card laminated once they have had the second appointment, which both Office Depot and Staples are offering to do for free, and that they keep it in the same place. If you have lamination equipment, you can also offer to laminate cards for your employees).
Given the sheer numbers associated with this pandemic, you have a right to protect your workforce. With over 500,000 deaths in the U.S. and over 590,000 in the EU, and case numbers still high, it is perfectly reasonable to ask and to make use of the answer when determining who can return to the workplace and who should continue to work remotely.
Can Employers Require the Vaccine?
Some companies are considering requiring vaccines for employees and visitors entering the office. There are some questions about whether it is legal to require a vaccine that is licensed only under an EUA, but it is likely courts will rule in the favor of employers. This is even more likely for companies requiring vaccination in order to work on site as opposed to remotely as, unless there is a significant loss in career opportunities to the remote worker, there is not much of a case that worker can bring.
You do need to consider the Americans with Disabilities Act (ADA), and Title VII. Under the Americans with Disabilities Act. These require certain exemptions:
- Medical reasons, such as an allergy to the vaccine, autoimmune diseases or extreme phobia. However, this might fall under the "direct threat" definition under the ADA. You have to provide these employees with a reasonable accommodation, but do not necessarily have to allow them on site. The best course of action is to require them to work from home until the office is fully open. In most cases this is likely to align with the employee's own preferences.
- Under Title VII, you have to allow for religious exemptions, and you are supposed to assume they are valid unless you have reason to believe otherwise. With employees, you may well be able to spot potential issues (such as when an employee who has never asked for anything else on religious grounds).
- You do not have to grant any kind of personal preference exemption.
Also consider the vaccination roll out in your state and the availability of vaccines to younger and healthier employees; again, it's not unreasonable to ask people to continue to work from home until they are fully vaccinated, but understand that during this interim period some of your people may not be able to get vaccinated.
Set a clear policy for employees who refuse to get vaccinated. Yes, it is legal to terminate an employee for refusing to get vaccinated for personal reasons, because they are believing an anti-vax conspiracy, or whatever. However, if you have a large number of employees who are likely to refuse to be vaccinated, then this can cause a problem. Another potential issue is the question of being held legally liable for an outbreak if you don't mandate vaccinations. This is unprecedented, but could still happen in this case, given the prevalence and danger of the disease.
There are, of course, alternatives to mandatory vaccinations. These might include:
- Giving a bonus to employees who present proof of vaccination
- Giving free paid time off.
- Giving out gift cards or other incentives.
- Adding the COVID-19 vaccine to your existing wellness program.
You should also grant paid time off for people who are unable to work due to vaccine side effects; while side effects are transitory and generally last only 24 to 48 hours, they can be intense enough that people may want to take sick time. Make it clear that sick time will be granted no questions asked and will be paid. If they are charged an administrative cost for getting the vaccine, cover it. Larger workplaces may be able to set up vaccine clinics, but if you do that, make sure to vaccinate employees in shifts so not everyone gets side effects at once.
Can You Require New Hires to Get Vaccinated Before They Start Work?
Yes, as long as you are also requiring vaccination for existing employees. You can also require vaccination or the intent to get vaccinated as a condition of hiring. Again, bear in mind that not everyone is eligible for the vaccine yet, and that when they are, it may still take weeks for an individual to get an appointment.
You cannot refuse to hire somebody who is unable to get vaccinated for medical or legitimate religious reasons, but you can absolutely take into account refusal to get vaccinated for personal reasons. It's worth remembering that there is a strong overlap between people who refuse to get vaccinated and people who are not taking other reasonable COVID-19 precautions. A new hire who won't get vaccinated may also be a new hire who waltzes into the office without a mask after going to a party the previous night and exposes everyone.
If a new hire is unable to get the vaccine right away, make sure you have provisions in place to onboard them remotely and then arrange for them to come in once fully vaccinated.
For more information on getting employees back to work and safely reopening your office, get "The Essential Guide to Preparing Workplaces for COVID-19."