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Since March of 2020, the world has been turned upside down as a result of the Covid-19 pandemic. The pandemic has rocked many industries, especially small businesses that have faced understaffing, inflation, supply chain issues, and more. Surges in infection rates caused by waning vaccine immunity and the delta and omicron variants have forced employers to face challenging questions surrounding employee vaccination requirements. This guide will walk through some of the most frequently asked questions about vaccination policies, vaccine verifications, and vaccine exemptions in the workplace as employers navigate the shifting landscape of returning to work while creating a safe environment for their employees and customers.
Generally, employers are allowed to require that their onsite employees be vaccinated. Recently, the Equal Employment Opportunity Commission (EEOC) came out with guidance on this issue. They decided that employers are allowed to implement mandatory COVID vaccine policies as long as the employer isn't violating federal discrimination rules related to disability and religion. If an employee has a genuinely held religious belief or a diagnosed disability that prevents them from getting the COVID vaccine, employers are legally required to provide reasonable accommodations to these exempt employees that do not result in an undue hardship. However, if it is not possible for the employer to make reasonable accommodations, for example, if the employer's business is in an industry that requires close physical contact that cannot be avoided, the unvaccinated employee may be excluded from the workplace.
If an employee is not covered by a valid exemption, it is legal for an employer to fire them for not being in compliance with their vaccination policy. However, if the employee has a valid exemption on file, it can be legally sticky to terminate them and their employer should consult with a lawyer before doing so. Depending on the specifics of the situation, terminating the employee could violate state and federal laws that prohibit discrimination based on religion or disability. If an employee's unvaccinated status constitutes a direct threat to the health of other employees in the workplace, an employer may be justified in terminating them but should proceed with caution and consult an attorney if any questions arise.
Yes, the EEOC and the Centers for Disease Control (CDC) have created comprehensive guidelines for businesses about how they can monitor employees for symptoms and require that they get tested for COVID. One important detail is that employers may only require rapid testing or PCR testing. In compliance with the Americans with Disabilities Act (ADA), they may not require antibody testing as that only shows whether someone has antibodies for COVID, indicating a prior COVID infection or vaccination. Only tests that have results showing a current infection may be used.
The CDC has strongly discouraged employers from requiring that their sick employees provide a positive COVID-19 test result or a letter from their doctor in order to validate their illness and qualify for sick leave. Having these requirements creates barriers for employees that may not have the time, money, or healthcare coverage to access testing in a timely manner while they are already dealing with illness. However, the EEOC has stated that employers are allowed to require testing as long as they remain in compliance with federal law while doing so.
The last several years have been full of uncertainty, anxiety, and fear, especially with the emergence of new COVID variants that make vaccines less effective than they initially were. This could lead to employees refusing to return to work due to their understandable fear of infection. The Occupational Safety and Health Act (OSHA) protects employees who refuse to return to the workplace if they have a reasonable belief that they are in "imminent danger" of contracting COVID. To be protected by OSHA, the employee must not just have a general fear of getting COVID but must prove that they have a fear due to specific circumstances in their workplace that put them at risk. However, if an employee does not have a fear of imminent danger of contracting COVID in their workplace and they still refuse to return to work, they are not entitled to pay or job protection. For more information about employees' rights to safe working conditions, please see our guide Workplace Safety during the Coronavirus Pandemic.
No matter which vaccines an employer decides to mandate, it is crucial that they have a written workplace Vaccination Policy ready to give to their employees. Having a written policy makes expectations clear and gets rid of any confusion or miscommunication about what the employer requires of its employees regarding vaccination. Firstly, when drafting a vaccination policy, an employer should consider how it is impacted by applicable state and federal laws, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, as well as any relevant local requirements. The employer should also consider their specific industry and its standards, as well as the makeup of their workforce, when drafting a vaccination policy.
A vaccination policy should use straightforward and easy-to-understand language concerning its requirements, exemptions, and reasonable accommodations in lieu of vaccination, such as masking, testing, remote work, or using paid leave. The policy should also include any consequences for not getting vaccinated as required, such as suspension or termination of employment.
Once an employee says that they do not plan to become vaccinated as required by the vaccination policy because of a disability or religious belief, small business employers should first ascertain whether they are subject to the regulations of the ADA and Title VII. If an employer determines that they are indeed bound by these regulations, they should follow the legal requirements and guidance of both. After being notified of an employee exemption, the employer should ask for the exemption in writing and confirm whether the employee's exemption is protected by the rules surrounding religious objections or disability. The employer should then figure out whether they are able to make a reasonable accommodation for the exempt employee so they are able to continue doing their job while also remaining safe. Reasonable accommodations include measures such as remote work, masking, reducing public-facing responsibilities, or modifying shift schedules and workspace layouts.
According to guidance from the EEOC, employers are allowed to ask employees if they have been vaccinated and require proof of vaccination through vaccine cards, passports, or doctors' notes. The EEOC explains that even employers covered under the ADA may request proof of vaccination from employees since this request does not necessarily elicit details about disability. However, on this note, employers should be cautious when inquiring about an employee's reasons for not being vaccinated. Though there are many reasons why an employee would not be vaccinated, including personal choices that do not constitute valid exemptions, these questions can probe into sensitive territory involving religious or medical reasons, triggering additional protections by the ADA and Title VII.
It is crucial for employers to keep themselves informed of guidance surrounding vaccine policies, exemptions, and verifications related to the COVID-19 pandemic in the interest of protecting employees, customers, and businesses. The laws in this area are shifting as the course of the pandemic evolves, so it is especially important that employers take the time to evaluate their options and obligations, staying on top of the changing laws, rules, and guidance.
About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.