Your Employer Can Require You to Receive the COVID-19 Vaccination – With Exemptions

COVID-19 vaccinations are being administered to Americans nationwide. While many are saving their place in line to receive the vaccinations, others are wondering if their employer can mandate their employees receive the vaccine. The short answer is yes. However, there are some exemptions.

To guide employees, the Equal Employment Opportunity Commission (“EEOC”) has published frequently asked questions and answers here. This article is designed to summarize EEOC guidance on the topic of vaccinations.

Employee Health Information Generally

Before discussing the exemptions, is it important to understand the guidelines concerning employee medical rights with their employers.

The ADA has restrictions on when and how much medical information an employer may obtain from an applicant or employee.  During the interview process, employers cannot make disability-related inquiries. Further, medical exams are generally prohibited as a requirement to obtain a job. Once an employee is hired, employers can make disability related inquiries, and require medical exams, so long as they are job-related and consistent with the requirements of the position.

You can read more about ADA guidelines regarding employee medical information here.

As for vaccinations, the ADA and EEOC are clear; the vaccination itself is not a medical exam, as the employer is not seeking medical information concerning the employee. The ADA and EEOC further state that asking an employee for proof of vaccination is not a disability related question. Since vaccinations are not a medical exam, and requesting proof of a vaccine is not a disability related inquiry, employers may require employees to receive the vaccine.

To note, screening questions prior to administering the vaccine, and inquiries as to why a vaccine was not obtained, could amount to a disability related inquiry in violation of the ADA.

As with most areas of law, there are exemptions employees should be aware of.

Exemptions To An Employer Required Vaccination

There are two primary exemptions that should be considered when an employee is required to receive the vaccination. The first is any disability the employee may have that will prevent them from obtaining the vaccination. This exemption is set forth under the ADA.

The second exemption is an employees “closely held” religious beliefs. This exemption is set forth under Title VII.

Disability Exemption

Some employees may have a disability that prevents them from receiving the vaccination. The ADA is clear that employers cannot require these individuals to receive a vaccination. If a medical provider has informed an employee that they are unable to receive the vaccination, the employee should request an accommodation from their employer. Employees should be aware this could open the door to your employer requesting, and potentially being entitled to, an employee’s medical information.

This scenario leaves many employees wondering what will happen to them if they are unable to get vaccinated. The ADA provides guidelines for how employers must handle an employee seeking a disability exemption from the employer’s vaccination requirements.

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”

To determine if an unvaccinated employee poses a “direct threat” to the health of other employees, an employer should conduct an assessment of the employee. That assessment should analyze:

• The duration of the risk;
• The nature and severity of the potential harm;
• The likelihood that the potential harm will occur; and
• The imminence of the potential harm.

If an employer determines that an employee who cannot be vaccinated due to their disability poses a direct threat to the workplace, the employer may be permitted to exclude the employee from the workplace.

Before an employer can exclude an employee, the employer must attempt to provide a reasonable accommodation that would eliminate or reduce the “direct threat.” Such an accommodation may include working remotely. The employer does not have to provide an accommodation if it would cause an employer “undue hardship.” Undue hardship generally means significant difficulty or expense. If an undue hardship exists, an employer may be able to exclude the employee from the workplace.

It is important to note, the ADA protects public employers (federal, state, local, and other government agencies) and private employers with 15 or more employees.

Religious Exemption

An employee may be exempt from an employer-mandated vaccination for “closely held” religious beliefs pursuant to Title VII. An employee must notify their employer of their closely held beliefs in order to receive the protection.

Employees should be aware that since the definition of religion is broad, there is no clear definition of a “closely held” religious belief. As such, the EEOC directs employers to presume that an employee’s request for an accommodation due to their religious belief is “closely held.” However, if an employer has an objective basis for questioning the religious nature or the sincerity of the belief, an employer can seek additional information from the employee.

If an employee notifies their employer that their religious beliefs prevent them from receiving a vaccination, the employer must provide reasonable accommodations to the employee.

As with the disability exemption, if the accommodation causes undue hardship to the employer, the employer may be justified in excluding the employee from the workplace.

Conclusion

Yes, an employer can require an employee to receive a COVID-19 vaccination. While there are many considerations for an employer when deciding to require their employees get vaccination, the two primary protections for employees are disability exemptions under the ADA and religious exemptions under Title VII.

If an employee qualifies for an exemption, the employer must provide a reasonable accommodation. If a reasonable accommodation would cause the employer undue hardship, the employer may exclude the employee from the workplace. Whether an employer can “legally” terminate an employee when no reasonable accommodation is available is highly subjective to each employee and workplace.

As with most issues arising under employment law, the facts and scenarios of each case are different. More often than not, there is bright-line guidance for an accommodation. As such, it is highly encouraged that individuals contact an attorney to discuss their potential claims.

If you have questions or concerns regarding your rights, please contact Grewal Law PLLC.

DISCLAIMER: Employers and Employees are also bound by requirements under the Family Medical Leave Act and the Michigan Persons with Disabilities Act. These may impose further restrictions not identified here. This list is not meant to be exhaustive of all legal requirements or construed as legal advice.