Can You Require Your Child Care Employees to Get the COVID-19 Vaccine? UPDATED

Pessin Katz Law, P.A.
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Pessin Katz Law, P.A.

As you get ready to provide child care onsite after the COVID-19 related shutdowns, you’ve already made plans for cleaning routines, modified your classroom environments, and developed new classroom activities in order to reduce COVID exposures. And with the ramping up of vaccinations across Maryland, you’ll also want to plan how to get your employees vaccinated to reduce the risk of COVID infection among your staff and the children and families you care for.

In Maryland, child care workers became eligible to receive the vaccine on January 18, 2021, and many Maryland-licensed child care facilities are asking whether they can require their employees to be vaccinated. Legally, the short answer is yes, but you’ll want to consider two legal issues and one practical issue about requiring vaccinations, all of which I discuss below.

As an employer, you have the ability to establish work conditions that do not violate federal, state, or local laws. And as a licensed child care provider, you already know the Maryland State Department of Education keeps a close eye on both worker health and safety and healthy classroom environments for your children. A provider who can show that all staff are vaccinated has less risk of being closed because of COVID. Requiring vaccinations is both good risk management and good business.

The legal issues involve two federal laws, the Civil Rights Act of 1964, and the Americans with Disabilities Act. While a child care employer might like to require that all employees get vaccinated before returning to employment, these laws require an individualized approach on this issue.

Under the Civil Rights Act, if an employee states a sincerely held religious belief that prevents compliance with an employment requirement – like getting vaccinated – the employer typically must make reasonable accommodations for that belief unless providing the accommodation would be an undue hardship for the employer. A reasonable accommodation places an undue hardship on an employer when the accommodation imposes more than minimal costs onto the employer. Here, allowing an employee to work without a vaccine based on religious accommodation would impose more than minimal costs onto the employer, since any COVID exposure would shut down the child care facility.

Under the Americans with Disabilities Act (the ADA), if an employee has a disability that prevents them from getting the vaccine, the employer must then consider that individual’s work responsibilities in order to determine if having an unvaccinated employee on-site would be a “direct threat” as set out in the ADA. This would require a determination that the unvaccinated employee would expose others to the virus at the worksite.

When an employer determines under the ADA that the employee would be a direct threat, the employer must then consider any reasonable accommodation that would allow the employee to work. In a typical office setting, this could mean telework. But in the childcare setting, where most of the work requires direct physical supervision or contact with young children, telework is not a viable solution for most child care employees. For this group of employees, the employer should provide counseling about leave under the Families First Coronavirus Response Act, the Family Medical Leave Act, and the employer’s own leave policies.

The practical issue, of course, is that as of this writing the vaccine is still in short supply. Employers may find that trying to staff a child care room with only vaccinated employees is not possible yet. But this provides an opportunity for a child care employer to educate their staff about the vaccine, advise that the facility will eventually staff only with vaccinated persons, or to give rewards to staff who do the work to get vaccinated now.

This article was originally posted on March 24, 2021. Below are some links to articles with updated information on employer mandated COVID-19 vaccinations.

https://www.pklaw.com/articles/adopting-mandatory-covid-19-vaccination-programs-update/

https://www.pklaw.com/articles/return-to-work-considerations-for-employers-adopting-mandatory-covid-19-vaccination-programs/

https://www.pklaw.com/articles/a-shot-in-the-arm-for-economic-recovery-do-not-forget-eeo-compliance-before-implementing-a-covid-19-vaccination-program-in-your-workplace/

https://www.pklaw.com/articles/what-employers-need-to-know-about-oshas-impending-emergency-temporary-standard-for-employee-vaccinations/

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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