The short answer is yes, subject to certain exceptions and requirements.

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance on whether employers can require their employees to take a COVID-19 vaccine. An employer may require its employees to take a COVID-19 vaccine subject to the following exceptions and requirements.

If the employer is the one administering the vaccine and asks disability related prescreening questions the employer must show that the disability related prescreening questions are “job related and consistent with business necessity.” To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.

An employer may relieve itself of the obligation of having to show that asking disability related prescreening questions are job related and consistent with business necessity by contracting with a third party vendor to administer the vaccines.

However, an employer must follow the reasonable accommodation process when an employee objects to the vaccine because of a disability or a sincerely held religious practice or belief.

If an employee objects to taking the COVID-19 vaccine because of a disability the employer must show that the unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). There are four factors in determining whether a direct threat exists: the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.

If the employer concludes that there is a direct threat, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. The employer must determine if any other rights apply under the EEOC laws or those issued by other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely or transferring the employee to an alternative vacant position that does not pose a direct threat if the employee is unvaccinated. Employers have an obligation to engage in a flexible, interactive process to determine if there are any accommodations available that do constitute an undue hardship (significant difficulty or expense). This is an individualized assessment and should be addressed on a case by case basis.

The employer must follow the same reasonable accommodation and interactive process procedures if an employee objects to taking the vaccine due to a sincerely held religious practice or belief.

It is crucial that the employer conducts a thorough interactive process on an individual basis because there is litigation risk due to disability and religious discrimination claims, as well as workers compensation claims.

Courts cast a fairly wide net as to what religious-based beliefs will provide protection under Title VII. The religious belief may be newly adopted, inconsistently observed, not part of a formal church or sect’s religious practice, or different from the commonly followed tenants of the individual’s religion. As an example of the broad interpretation of sincerely-held religious beliefs, courts have determined that veganism may constitute a religion where an employee protests receiving a vaccine containing animal products, such as eggs. See Chenzira v. Cincinnati Children's Hosp. Med. Ctr., No. 1:11-CV-00917, 2012 WL 6721098, at *1 (S.D. Ohio Dec. 27, 2012)

Some examples of disabilities that may preclude employees from receiving the COVID-19 vaccine include life-threatening allergies, diseases that compromise the employee’s immune system, or – in the case of a recent Third Circuit Court of Appeals case [Ruggiero v. Mount Nittany Med. Ctr., 736 F. App'x 35 (3d Cir. 2018)] – a severe and well-documented anxiety associated with the side effects of receiving vaccines. In this case, the former employee, who was a registered nurse with severe anxiety and eosinophilic esophagitis, brought action against her former employer alleging that her employment was terminated because she refused to get a required tetanus, diphtheria, and pertussis (TDAP) vaccine, in violation of Americans with Disabilities Act (“ADA”).

If a healthcare provider is contemplating whether to require its employees to take a COVID-19 vaccine, it should consult with a qualified employment attorney.