As more companies are encouraging employees to return to physical offices and in-person work, the question of whether or not a company can require all workers to receive a COVID-19 vaccination has become a serious topic of discussion. According to newly released federal guidance, the Equal Employment Opportunity (EEO) laws do not prevent employers from requiring all employees physically entering the workplace to be fully vaccinated for COVID-19. Employers are even able to provide incentives to their employees to encourage them to get their vaccination and help prevent further spread and evolution of the virus. The Equal Employment Opportunity Commission, which enforces workplace anti-discrimination, issued the new guidance to help employers navigate the complex legal provisions surrounding COVID-19.
Companies asking workers to return to the office and/or other physical work locations are able to require each worker to be fully vaccinated upon return. If a worker is unable to get the vaccine because of a medical condition, disability, sincerely held religious belief, or other reasons, the company must find alternative arrangements or accommodations for that worker. Reasonable accommodation for these employees is required by the Americans with Disabilities Act, Title VII of the Civil Rights Act, and various other federal employment laws. An employer must provide the reasonable accommodations only if the accommodations would not pose an undue hardship on the operations of the company. Determining whether an undue hardship would exist depends on whether the accommodation is for a disability or if it is for religious reasons. The EEOC states, “Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.” The EEOC also reminds employers that it would be illegal to apply a vaccination requirement in any way that treats employees differently based on religion, sex, sexual orientation, gender identity, race, national origin, pregnancy, disability, age, or genetic information.
Reasonable accommodations or modifications for employees who do not get vaccinated due to disability, medical reasons, or religious beliefs can take form in many ways. Some reasonable accommodations for an unvaccinated employee entering the office include working at a social distance from their coworkers and customers, wearing a mask while at work, taking COVID-19 tests on a scheduled basis, working shifts that have fewer interactions with coworkers or customers, being given the opportunity to work remotely, or accepting reassignment. These particular accommodations or modifications can apply to any worker who chooses to not get vaccinated for medical reasons, because of a disability, or a sincerely held religious belief.
Companies who offer incentives to employees to voluntarily confirm their vaccination status are protected under the new guidance, but must maintain that this practice is optional. Employers are not allowed to pressure their employees to share any medical information. If the employee chooses to share their vaccination status and shows a record of vaccination to their employer, the employer must keep that information confidential. Some incentives companies are offering to their employees include paid time off to get the vaccine, extra vacation days, entrance into a sweepstakes or giveaway, and cash bonuses. Outside of offering incentives, companies are allowed to provide helpful information about COVID-19 vaccination to help educate their employees. Employers are allowed to raise awareness about the benefits of vaccination, answer common COVID-19 related questions, and provide information about vaccine sites and low-cost transportation.
Companies are still required to abide by all Occupational Safety and Health Administration (OSHA) standards and guidelines to ensure a safe workplace for their employees. This includes continuing to take extra COVID-19 precautions. Employers must assess the risk of exposure to the virus and maintain their plan to keep employees protected. The plan may include requiring all employees to be vaccinated, wearing personal protective equipment when interacting with customers, or setting capacity limits in the office to allow for social distancing. Frequent and thorough cleaning of offices and workplaces can also be included in a company’s COVID-19 safety plan to ensure any exposure to the virus in the environment is minimized. If all workers are not vaccinated, companies must have procedures to protect the unvaccinated, which can include requiring unvaccinated workers wear masks.
As with any new employment policy or requirement, employers must be prepared to face backlash. Companies that require workers to be vaccinated could face allegations of discrimination. Some employees may allege that a vaccination requirement has a disparate impact on a subset of employees based on their race, color, national origin, age, sex, or religious beliefs under Title VII or the Age Discrimination in Employment Act. Employers must be aware of the barriers to receiving a COVID-19 vaccine for some demographic groups. Some employees may be more likely to be negatively impacted by a vaccination requirement compared to other demographics. New lawsuits have already been filed in multiple states with plaintiffs alleging discrimination because they did not get vaccinated. While the new EEOC guidance on COVID-19 vaccines has answered some legal questions, there is still sufficient room for interpretation, which will encourage some employees to bring lawsuits.
An example of the backlash was a lawsuit filed by 117 employees to block a vaccine mandate that had been announced by Houston Methodist Hospital. Federal United States District Judge Lynn Hughes issued an order on June 12th dismissing the lawsuit. Judge Hughes rejected all arguments plaintiffs raised, including that the vaccination mandate violated public policy, violated federal law because the Food and Drug Administration hasn’t fully approved the available vaccines, violated federal law governing protection for human subjects, and violated the Nuremberg Code. Judge Hughes stated comparing the threat of termination for refusing to be vaccinated to forced medical experimentation during the Holocaust was reprehensible. Judge Hughes also stated that “Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer….[Lead Plaintiff] can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.”