Can Cleaning and Security Employers Require Employees to Get Vaccinated?
As 2020 drew to a close, we started fielding questions from clients about whether they could require employees to obtain a COVID-19 vaccine as a condition of employment. These questions were sparked by the initial roll out of vaccinations for front line health care workers and nursing home residents and the alarming spike of COVID infections across the country during the holiday season. While vaccination of the general population is still a few months away, many of our clients have been deemed essential businesses and therefore will likely have access to the vaccine ahead of the general population. So while the question of whether to require a COVID vaccine isn’t imminent for most businesses now is the time to think about what your strategy will be.
Can employers require employees to get vaccinated?
The answer to this question essentially is yes. In December 2020, the EEOC issued guidance stating clearly that a COVID vaccine, administered by an employer or by a third-party administrator on behalf of an employer is not a medical examination and is permissible. While the EEOC has deemed such a requirement permissible, they stated that employers should have a well-articulated business reason for requiring the vaccine, such as the need to protect the health of employees or clients, or the need to travel, work with vulnerable populations, or work in close quarters with others. The EEOC also cautioned that employers must provide “reasonable accommodation” to employees who either are unable to receive a vaccine due to a medical condition or due to a “sincerely held religious belief.” A reasonable accommodation may include allowing an employee to work from home, isolate from other workers, or significantly adjust work duties to provide protections from the general employee population. Under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act, employers must allow reasonable accommodations such as these as long as providing the accommodation doesn’t cause “undue hardship” for the employer.
The EEOC also cautioned employers who plan on requiring a vaccination to be careful not to violate employees’ rights when asking the sort of health screening questions that will likely be necessary in order to ensure there are no underlying medical reasons for which the employee should not receive a vaccine. Because of this, the EEOC advises that employers should consider making vaccinations voluntary or should have a third party administer all aspects of the vaccination process. Along the same lines, if the employer plans to require proof of vaccination, they need to take care not to pursue the reasons why an employee was unable to obtain the vaccine unless they can argue that the employer had a reasonable belief that the employee’s refusal to provide their own protected medical information concerning their inability to receive the vaccine poses a significant risk of substantial harm to the health or safety of the individual or others. In other words, be ready for a lawsuit.
To be safe, if an employer elects to require a COVID vaccine, they must:
- Exercise care in administering the vaccine and consider outsourcing the entire process to a third party
- Refrain from asking any unnecessary health screening questions
- Keep confidential any medical information received from employees, and
- Be prepared to engage with any employees who request accommodation or seek an exemption from the vaccination due to medical or religious reasons.
We strongly encourage employers to also lead by example in their approach to taking the vaccine and, thereafter, to continue to maintain safe social distancing and use of PPE. In the case of employees requiring reasonable accommodation, employers should consider and review each case carefully before taking an adverse action against an employee for failing to obtain a vaccine. It is also important not to substitute your wants and opinions for those of the employee’s doctor who is making the determination on whether the employee should receive the vaccine. And for those who cannot take the vaccine, it is important not to discriminate, retaliate, harass, or otherwise disadvantage the employee in terms of job duties and pay as a result of their inability to get inoculated. You should also be careful to keep all information confidential and not communicate who has and who has not been vaccinated.
Finally, if you are considering requiring a vaccine, you may want to take stock of how your employees responded to many of the precautionary measures you may have required over the past few months, including following social distancing protocols, consistent and appropriate wearing of masks and other protective equipment, and overall compliance with the safety protocols put in place since the outbreak of COVID. If maintaining a safe workforce was challenging, you can anticipate the issues related to mandating, communicating, educating, tracking, and accommodating employees during this process will be equally if not more challenging.
Just because they can require a vaccine, doesn’t mean they should.
Our advice for employers is to take steps toward encouraging vaccines before they decide to mandate them. For a number of reasons, employees may be reluctant to get a vaccine – either because of legitimate health concerns or religious beliefs, or because of personal beliefs, privacy issues, and/or political concerns. While mandating the vaccine may be ultimately appropriate, we advise employers to encourage vaccines as a first step.
If taking this approach, employers could:
- Encourage vaccinations as part of a larger workplace wellness campaign, supported by goals and challenges and positive incentives
- Provide educational campaigns for employees to address their concerns, including perhaps inviting a medical professional to address employees’ confidential health concerns
- Give employees time off with pay to obtain the vaccine and, if necessary, to convalesce from the inoculation, and
- Lead by example by taking the first vaccine and celebrating the first step toward beating the pandemic.
We’re not out of the woods yet.
Finally, although the end of the pandemic seems within sight, we are still battling the highest level of infections at any point since the pandemic started. The virus is increasingly contagious if not virulent and even those who get vaccines will still need to mask and socially distance until more about the disease can be learned. For the time being, stay vigilant in protecting your employees, your clients, and your communities and spend some time now imagining how you and your employees will celebrate when this wretched disease is behind us!