The list of employers and government agencies requiring employees to be vaccinated against COVID-19 is growing, and such requirements are generally legal under federal law. But employers need to be clear about when exceptions must be made and how state laws can add a wrinkle to their vaccination policies.
Major employers across the country have begun announcing that they will require most employees to be vaccinated. Just a few of those employers are Google, Facebook, Disney, and Walmart corporate employees. Although the Walmart requirement doesn’t apply to store employees, the company has said it plans to begin a process of verifying employees’ vaccine status.
A number of states and cities as well as the federal government also have announced measures requiring government and healthcare workers to be vaccinated. For example, New York is requiring vaccination for patient-facing healthcare workers at state-run hospitals. New York state government employees will either need to be vaccinated or face weekly COVID-19 testing.
California also has announced vaccine verification and testing requirements for state and healthcare workers, and cities including Los Angeles, San Francisco, Long Beach and San Diego County have announced vaccine requirements.
Some state governments are taking the opposite stand. For example, in Montana, Arkansas, and South Carolina (just to name a few), laws or executive orders place limits on employers that want to require vaccinations.
Policies OK Under EEOC Guidance
Employer policies requiring vaccinations aren’t surprising, according to Paul Sweeney, an attorney with Coughlin & Gerhart, LLP in Binghamton, New York, since the Equal Employment Opportunity Commission (EEOC) “has no objection to an employer’s mandatory vaccine policy provided that employers allow for exemptions for those employees who have a medical condition or sincerely held religious belief precluding vaccination.”
Sweeney says “there is certainly a compelling rational basis for requiring hospital workers to get vaccinated,” but most private-sector employers “have and will continue to only encourage vaccinations.”
Sweeney says most New York employers have been asking for proof of vaccination for a few weeks so they can allow employees to work on-site without masking or social distancing.
“The big change will be that many employers may now follow the lead of the state and local governments and require proof of a negative test to work on-site for all nonvaccinated employees,” Sweeney says. “All of this is in addition to new masking protocols, which may require that fully vaccinated employees wear masks indoors in certain high-risk areas.”
Legal Issues to Keep in Mind
Employers adopting mandatory vaccination policies must understand their obligations under the Americans with Disabilities Act (ADA), which requires exceptions to be made for employees who have a medical reason for not getting vaccinated, and Title VII of the Civil Rights Act of 1964, which requires exceptions for employees with sincerely held religious beliefs or practices that prohibit getting the vaccine.
Sweeney reminds employers that they can legally ask employees if they have been vaccinated and collect such proof, but they may not ask the reason why a worker isn’t vaccinated, since that question may elicit protected information on one’s disability in violation of the ADA or genetic information in violation of the Genetic Information Nondiscrimination Act (GINA).
“Also, as with incentives, employers should not have a testing protocol which is so onerous as to be deemed unduly coercive and which forces a person to get vaccinated against their will,” Sweeney says.
In addition to being aware of issues related to requiring vaccinations, employers also must consider the legal issues associated with not requiring employees to be vaccinated.
Workers’ compensation laws are likely to prohibit many claims against employers filed by infected employees who are not vaccinated, but it is possible that others, such as a customer, may sue the business if its employee infects the individual, Sweeney says.
Advice to Employers
As the pandemic continues and new variants of the virus emerge, employers are urged to keep up with developments and new guidance.
“Stay tuned, especially as ‘the science’ surrounding COVID and its variants keeps changing,” Sweeney says. “Instead of just encouraging vaccinations, employers should consider implementing either a COVID testing program or require proof of a negative test to work on-site for those employees who are not vaccinated.”
If justified, Sweeney advises employers to consider making vaccination a condition of employment, like having a driver’s license is required for certain jobs.
“In addition, employers should ensure that all unvaccinated employees are masked and observe social distancing from others while working on-site,” Sweeney says. “Finally, employers should track whether vaccinated employees are to be masked per recent CDC guidance for high-risk areas. Consult with employment counsel on how to craft an enforceable and defensible vaccination and testing policy.”
“As many local governments are deferring to employers to require vaccines, employers have to evaluate their own vaccine mandate in the context of their specific workplace and workforce,” Vreeland says.
Questions Vreeland says employers should consider: “How significant are the risks of transmission between customers and coworkers? How responsible is the workforce about complying with masking requirements and other precautionary measures? What’s the prevalence in the local community?”
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.