Plus: Employee Vaccination Policy Template for Employers
Businesses and offices are opening up now that vaccinations have become widely available across the United States. Still, the U.S. population is yet to reach herd immunity – and the risk of contracting or spreading COVID-19 remains. If you're an employer, you want to make sure that your employees, customers, and their families are protected against the coronavirus before you start to reopen your workplace with fewer pandemic restrictions.
So what options do you have if an employee refuses to get vaccinated?
The Equal Employment Opportunity Commission (EEOC) also wants to ensure that any return to normal business operations happens safely. According to recent guidelines from the federal agency, employers and business owners can:
So can a company mandate the COVID vaccine? Depending on the job, yes! However...
Employers must be careful not to pry or ask for information beyond vaccination status because you could run into legal issues with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, or other workplace laws. If an employee is unable to get the vaccine because of a legitimate health issue, they could fall under ADA protection – and you don’t want to illegally discriminate against a worker with a disability. If an employee refuses the vaccine because of a genuine religious belief, they might also be excepted from the requirement.
To complicate matters more, some states and localities are considering passing laws that limit an employer’s ability to ask about or require the COVID vaccine. If your business operates under those jurisdictions, you must be aware of the rights of your employees before you fire them or refuse to hire them for being unvaccinated.
If you take improper action against an employee based on their vaccination status, you could open yourself up to legal liability and even costly employment lawsuits.
How Does the ADA Apply to COVID Vaccinations?
The federal Americans with Disabilities Act applies to all businesses with over 15 employees. If you’re a smaller operation that doesn’t qualify, your employees are not covered under the ADA and you don’t have to worry about the effect the law may have.
For covered employers, the ADA allows company policies that include “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”
COVID-19 exposure definitely qualifies as a threat to the health and safety of other people in the workplace, so you can require employee vaccination to avoid that risk.
However, if an employee has a disability that makes them unable to get vaccinated, the business must prove that an unvaccinated worker would create a “direct threat” with a major risk of harm that can’t be avoided with reasonable accommodation.
When deciding what is a direct threat, companies must consider:
The answer will depend on the type of company you have and the operation you run. Do your employees work in close contact with each other over long periods of time or can they complete their work from different locations? Does your business operate mostly outside or inside? Do your employees get any in-person contact with customers or the general public on the job?
If you’re able to prove that an unvaccinated employee would cause a direct threat to others at work, you must consider whether your company can make any reasonable accommodations to cut down on the risk in a safe way – such as remote work.
The ADA requires employers to work together with individual employees in an interactive process to set up reasonable accommodations for their job. Companies must make a good faith effort to provide accommodation so long as it doesn’t cause undue hardship.
When deciding what type of accommodation is reasonable, you must consider:
If your employee can complete their job remotely, you may be required to give them that option. If a worker can’t avoid in-person work, you could consider a rule requiring them to wear a mask to protect others. If for whatever reason your employee cannot wear a mask and you work indoors with significant exposure to the public, the risk may simply be too high to accommodate.
If your office needs a major overhaul of its air filtration system to keep operating, that could qualify as an undue burden – in which case, accommodation is not required.
You can ask your employee about their vaccination status but you cannot ask for additional medical records or information to back up their claim of disability.
Is It a HIPAA Violation to Ask About COVID Vaccine Status?
No. HIPAA prevents healthcare professionals from releasing private patient information without consent and generally doesn’t apply outside of healthcare settings.
As a business, you are within your rights to ask employees or even customers about vaccination status. You are even allowed to ask for official proof of vaccination. However, you cannot ask for any more medical information beyond an employee’s vaccination status.
COVID Vaccination and Religious Accommodation
Title VII of the Civil Rights Act of 1964 is a federal law that protects employees’ religious rights in the workplace. Title IV requires businesses with at least 15 employees to accommodate workers’ sincerely held religious beliefs or practices, so long as the accommodation does not create an undue burden for the company.
When it comes to religious accommodation, the “undue burden” standard is low – much lower than the standard for disability accommodation. As an employer, you don’t have to provide anything that carries more than a small or marginal cost.
An accommodation request may become an undue burden also if it:
For example, if your employee declines vaccination based on a religious exemption and is unable to wear a mask at work, that may be enough to compromise workplace safety.
How Can You Tell If a Religious Exemption Is Sincere?
What if you believe an employee is requesting a religious exemption from the COVID-19 vaccine in bad faith? What if you suspect their refusal is more about politics and not religion?
Generally, the law is broad on what qualifies as “religion” and you must accept employee religious beliefs as sincere, even if you’re not familiar with their practices. Usually, an employer does not have the right to question the sincerity of an employee’s religious beliefs, so long as they have to do with “ultimate ideas” about life, human purpose, and death.
However, you may have an objective reason to question someone’s beliefs. Still, this is a tricky area of law and you should talk to a lawyer before questioning your workers’ religious beliefs. The wrong move could open you to liability from a religious discrimination lawsuit.
COVID-19 Vaccine Policy for Employers
If you want your workers to get vaccinated, you should put a written company policy in place.
Your vaccination policy could be mandatory or voluntary.
When deciding whether to develop a voluntary or mandatory vaccination policy for your business, you must consider the unique situation of your business and your employees.
Whatever policy you decide to pursue, you must keep in mind all of the local, state, and federal laws that affect your business operations. Some local and state governments have introduced bills that dictate how employers can or can’t incentivize vaccines. Not only that, but COVID-19 guidelines across the country change on almost a daily basis.
A knowledgeable business lawyer can help your company navigate the shifting COVID-19 landscape to keep your employees and customers safe.
COVID-19 Employee Vaccination Policy Template
Below are general examples of mandatory and voluntary COVID-19 vaccination policy templates. These templates are not meant as legal advice and you should consult a business lawyer before applying them to your company’s operations.
Mandatory COVID-19 Vaccination Policy Template
For the safety of our employees, customers, and community, we are implementing a mandatory COVID-19 vaccination policy. This policy is in accordance with current guidelines set out by local, state, and federal authorities as well as the Center for Disease Control and Prevention (CDC). All employees are required to show proof of vaccination to return to the office unless a reasonable accommodation is discussed and approved. Employees not in compliance with this policy by [date] may have to take unpaid leave until the company decides their employment status moving forward.
As an additional incentive, you can allow employees to get vaccinated on paid company time. You could also grant employees a day or two of paid sick leave to manage the side effects of vaccination. This helps workers who are afraid of missing hours of paid work.
Voluntary COVID-19 Vaccination Policy Template
In the interest of the health of employees, customers, and the general community, we are encouraging employees to get their COVID-19 vaccination with [list of company incentives]. All employees who show proof of vaccination by [date] will get [incentive].
These templates cover only the bare bones of a good COVID-19 vaccination policy. You should discuss your policy with a business lawyer and cater it specifically to your company’s needs.
You can also add the following information to your vaccination policy to help employees:
Your approach is bound to change based on the size and particulars of your business. Asking your workers about their vaccination status before creating your policy will inform your company’s vaccination strategy for a better chance at success.
Creating Your Own Company Vaccination Policy
The first step in creating a company vaccination policy is to talk to a business lawyer.
Having legal counsel can make or break a successful workplace vaccination campaign. Companies must proceed with sensitivity and caution when dictating rules around employee health and bodily autonomy. Plus, the constantly changing patchwork of COVID-19 laws and regulations can present a legal minefield for employers.
With a knowledgeable business attorney in your corner, you can proceed with confidence in your company’s ability to adapt to society’s reopening. Call Holmes Business Law now at 215-482-0285 or fill out the online form to get started on your vaccination policy. Together we can get your business opened up safely as soon as possible.
Sarah E. Holmes is a Philadelphia business attorney and strategist that helps start ups and established businesses looking to expand, protect their assets and increase their profits in an approachable, down-to-earth way. When you're looking for a business lawyer in Philadelphia, the Main Line or New Jersey, we can help.