Employment Law Q&A: Vaccination Issues for Employers
Many workplaces are back to work in physical workplaces or are implementing a hybrid workplace. In-person work triggers proactive decisions about vaccinations. Below are key questions employers should consider in developing workplace policies and practices.
Can employers require vaccinations as a condition of employment?
Yes. Employers can require all employees physically entering the workplace to be vaccinated with some caveats. An employer must provide reasonable accommodations for employees due to a disability (under the ADA and state disability laws) or a sincerely held religious belief, practice, or observance (under Title VII) unless accommodation would pose an undue hardship on the operation of the employer’s business. The undue hardship standard is a challenging one for an employer to meet. Examples of reasonable accommodation could include wearing a mask, social distancing, working a modified shift, undergoing periodic COVID-19 tests, teleworking, or accepting reassignment.
While not controlling in other jurisdictions, the District Court for the Southern District of Texas in Bridges v. Houston Methodist Hospital, No. 4:21-cv-01774 (S.D. Tex. June 12, 2021) upheld Houston Methodist Hospital’s mandatory vaccination policy despite allegations that workers were being unlawfully coerced to receive “experimental and dangerous” COVID-19 vaccinations. The Court summarily dismissed the claims of the 117 employees who sued to block the vaccination requirement and the resulting terminations for failure to comply with the mandatory vaccination policy. Dismissing the employee’s allegation that the injection requirements violate the Nuremberg Code, the Court held that the mandatory vaccination policy is not coercive since employees are free to decline vaccination and work somewhere else.
Should employers educate and/or encourage vaccinations?
Many employers are opting to instead educate and encourage vaccinations, instead of mandating them. Educational information can include an explanation of the different vaccines and an identification of where employees can obtain a vaccination. The best resources educating employees are state Department of Health websites or the CDC link at https://www.cdc.gov/coronavirus/2019-ncov/vaccines/index.html. Use the original sources and avoid rewriting these guidances to avoid claims that information was not properly conveyed.
Can employers incentivize vaccinations?
Yes. According to the EEOC, any incentive may not be so substantial as to be coercive. Some examples of incentives include PTO, cash payments, gift cards, tangible gifts, transportation to the vaccination site, or flexible leave for illness after the vaccination.
Can employers require proof of vaccinations and is this information necessary?
Currently, yes, employers can require proof of vaccinations by viewing copies of the vaccination card or requiring an employee attestation. Be aware that there are bills pending in some jurisdictions prohibiting businesses or government entities from requiring digital proof of vaccinations. Whether an employee is vaccinated will be relevant in the event of exposure to COVID-19 in the workplace for quarantine decision. Additionally, many employers are choosing to maintain masking requirements for unvaccinated employees in states where masks are no longer mandatory.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.