The United States is currently distributing vaccines from two different major labs. Many governments and agencies are working through the logistics of who should be prioritized in receiving the vaccine. As it becomes more available, many people are wondering if their employer is able to require COVID-19 vaccines. With many people working from home or unemployed, this is a valid question that everyone must work through. People must consider the Americans with Disabilities Act and the Civil Rights Act of 1964, according to the Equal Employment Opportunity Commission (EEO).
Under EEO laws, an employer must accommodate any employee who objects to COVID-19 vaccines due to “sincerely held religious beliefs”. That is, unless the employee going unvaccinated causes an undue hardship for the business. The definitions of religion and religious beliefs are broad under these laws. This means that employers should, as a general rule, assume that any employee raising this sort of objection is sincere. If, however, the employer has a legitimate basis for questioning the sincerity, only then would requesting additional information be warranted.
If an employee does raise a religious objection to vaccination, and the business cannot accommodate them, this does not mean that they can be terminated. The employer will need to determine if any other rights apply under EEO laws. This means that the employee may be barred from physically entering the workplace but not automatically terminated until a full review is completed on a case-by-case basis.
Under ADA laws, an employer is able to require that an employee gets the vaccine before they return to the workplace. However, if an employee cannot receive the vaccine due to disability, then the business must look into accommodations. The employer must be able to demonstrate that the unvaccinated individual would pose a direct threat or significant health risk to themselves or others in the workplace. If such a demonstration can be made, then the employer must consider what, if any, reasonable accommodations can be made on behalf of the individual. Such accommodations may include working remotely or a leave of absence.
The EEOC uses 4 key elements in determining the existence of a direct threat. These are:
- The nature and severity of the potential harm
- The likelihood that potential harm will occur
- The imminence of potential harm
- The duration of the risk of potential harm
In short, yes, an employer may require employees receive the vaccine before they return to the workplace. However, businesses must make accommodations for those with religious objections or disabilities that would preclude them from receiving the vaccine. In light of this, it is more likely that employers will encourage their employees to get vaccinated without outright requiring it. They may provide incentives to those who do receive the vaccine. These incentives could include a campaign to provide more information about the vaccine, covering the cost of vaccination, or providing paid time off for employees to get the vaccine and to recover from any side effects. Employers should also lead by example. If they want their employees to get vaccinated, then they should receive the vaccine first.