Insights 3/31/21

Can I (as the employer) require my employees to be vaccinated against COVID-19?

Good question. We’re already vaccinating significant portions of the population. As we continue to march towards having COVID-19 vaccines made available to all of the general public, employers must decide whether to (1) require their employees to have a vaccination; (2) incentivize employees to get vaccinated; or (3) still take health precautions but simply do or say nothing about a vaccination. Which direction you choose may have a lot to do with your industry and business model. Healthcare workers are at one extreme end of the spectrum where the vaccine may be mandatory. There are, however, many businesses that require employees to interact with clients, the general public, or each other in a manner where contact and spacing can create more risk of exposure. Looking at those risks will help you make the decision on how to act when it comes to vaccination requirements.

It’s good to note that generally, with a few limited exceptions, employers can legally require their employees to receive a vaccination for COVID-19. One exception, however, is where an employee objects to receiving the vaccine because they suffer from a disability under the Americans with Disabilities Act (the “ADA”). In that case, the employer must engage in the usual interactive process with the employee to determine whether there is a reasonable accommodation that can be made. The possible accommodations may include continuation of remote working, isolation from other workers and customers, or other measures designed to protect the employee from the potential of contracting COVID-19. Similar to other accommodation requests under the ADA, though, employers may request certification regarding the employee’s claimed disability.

Another exception is if an employee objects to vaccination on religious grounds. In that case, the employer must provide a reasonable accommodation for the employee’s sincerely held religious beliefs, practices, or observances unless the accommodation would pose an undue hardship under to the employer. An “undue hardship” is a hardship involving more than what we in the legal field call a de minimis cost or burden on the employer. That is, a cost or burden that is truly minimal in scope or imposition. The Equal Employment Opportunity Commission states, however, that because the definition of “religion” under its guidelines is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, though, the employer may request supporting information from the employee.

Because of the foregoing limitation on the absolute legal right to require your employees to be vaccinated, rather than mandating vaccinations, you might be best served by making vaccinations voluntary or creating incentives for employees to receive the vaccination. In any event, please feel free to contact RMI to assist you in this process. We are here to help you navigate these kinds of questions as well as sharing best practices of other companies that are dealing with the same issues.