Vaccination is our only way out of the COVID-19 pandemic. Harrowing scenes from India, which has vaccinated only a fraction of its population, when juxtaposed with the loosening of restrictions in England which will soon vaccinate its entire adult population against the virus, have made that clear.
However, while it is evident that vaccines do work, some critical questions remain unanswered. One of the most pressing questions for your company is can employers mandate COVID vaccine for their employees?
The short answer is yes. The U.S. Equal Opportunity Commission has made it clear that employers may ask their employees to get vaccinated in its updated guidance. Read on to know the implications of this answer and answer other questions employers may have about vaccination.
The EOCC Says Employers Can Mandate COVID Vaccines
According to the guidelines issued by EOCC, employers can require their employees to get vaccinated against diseases recognized as pandemics. This applies to COVID-19. The policy was first prepared in 2009 in response to the H1N1 outbreak but underwent an update in March 2020.
However, just like the original guideline, its updated versions also note that two people are exempt from this rule. They include workers with pre-existing medical conditions and those with religious beliefs opposing vaccines. Let’s discuss both these exemptions in detail.
Workers With Medical Conditions
The Americans with Disability Act allows workers with medical conditions to get “reasonable accommodations” from their employers. Examples of such medical conditions include specific allergies and compromised immune systems, among others.
Under the ADA, the employer can request information from their worker looking for a reasonable accommodation. They might demand information regarding the nature of the medical condition and the issue that vaccination may cause. That’s not all.
The worker should also provide documentation from their medical provider that confirms their need for accommodation. Employers don’t have to grant a reasonable accommodation request if an employee won’t participate in this process.
Workers With Religious Beliefs Opposing Vaccines
According to the Title VII of the Civil Rights Act of 1964, people with sincerely held religious beliefs against vaccines can refuse to take a mandatory jab. They don’t have to believe in God or have a church membership to get exemption on religious grounds. The EOCC exemption covers all sincerely or firmly held ethical or moral beliefs.
How can an employer ensure that the worker’s religious beliefs against vaccination are sincere? That is where things get subjective. Attorneys claim that the employer could demand a first-hand explanation from their workers or decide to verify their religious belief by third parties.
Third-party verification might come from those who are aware of the worker’s religious beliefs. However, make sure that you aren’t asking for too much information. Otherwise, you might be risking liability for refusing to grant a reasonable accommodation request.
Will Employers Require Workers to Get Vaccinated?
According to an ASU/Rockefeller Foundation survey, almost 44% of employers will require their workers to get vaccinated. More than 30% will encourage their workers to get the jab, and less than 15% of employers require the vaccine for some of their workers.
The survey took into account responses of over 950 facilities across more than 20 industry sectors in the U.S. Most employers who responded to it have around 250 or more employees, with 42% of them claiming that they won’t allow an un-vaccinated worker to return to a physical workplace.
That shouldn’t come as a surprise, given that 70% of the survey’s respondents have made COVID 19 tests mandatory for their workers. And it isn’t only their concern for profits that have resulted in the explosion of companies mandating COVID vaccine.
Instead, with more than 1 in 3 workers concerned about their health, workplace safety, and risk of infection, employers must do everything they can to try to convince workers that returning to a physical work environment is safe
Can Employers Ask Employees to Submit Proof of Vaccination?
The ADA allows employers to request proof of vaccination because this isn’t a disability-related inquiry, notes the EEOC’s COVID-19 guidance. But it cautions employers to ‘’demonstrate’’ that their vaccine-related questions are ‘’consistent with business necessity”.
Employers should keep their questions “job-related.” They must warn their workers not to reveal any of their medical information while indicating their status. However, they can ask the worker to disclose a disability preventing them from getting vaccinated.
Furthermore, be mindful of your state and local regulations before requesting workers to reveal their vaccination status. That’s because several states have pending legislation that bar employees from asking for the so-called “vaccination passports” of their employees.
While none of these legislations have become law at the time of writing, employers can never be too cautious. They would therefore do well to seek legal counsel or get professional HR help before asking their employees to submit proof of vaccination.
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Which Companies are Mandating the COVID 19 Vaccine?
According to NBC News, most companies mandating COVID vaccine belong to the healthcare, academia, and hospitality sectors. That’s expected as all three sectors suffered the most losses – physical in healthcare; economic in the case of the other two – when countries went into lockdown.
Small businesses, however, neither have the connections with their rank-and-file workers nor the resources for potential litigation if their employees decide against getting the jab. A survey carried out by the National Federation of Independent Business has found only 3% claiming they would require it.
Can Employers Ban Employees from the Workplace If They Refuse to Get Vaccinated?
Under the ADA, employers are allowed to enact a workplace policy that states “an individual shouldn’t pose a direct threat to the health and safety of [other] individuals in the workplace.” The EEOC lists four factors to help employers decide whether a direct threat exists:
- Duration of the risk
- Nature and severity of potential harm
- Likelihood that the said harm will occur
- Imminence of the potential harm
The EEOC further states that if the worker poses a direct threat, the employer can make a reasonable accommodation to protect the health and safety of other workers. That includes permitting the worker to work remotely or letting them take a leave of absence.
So as it turns out, employers can legally require the COVID 19 vaccine for employees (with two notable exceptions). And they can lawfully ask their workers to submit proof of vaccination. If an employee refuses vaccination and does not fall under one of the exemptions, employers can bar them from workplaces when they pose a direct threat to the health and safety of other workers. However, requiring employees to get the vaccine does come with certain risks. Employers who are unsure or who are worried about their employee’s response to such a mandate should get professional HR help before making any changes to company policy.