Employers contemplating a return to the workplace face many new issues that can have significant legal consequences. The following are 5 questions we have been receiving from our clients.
1. May employers mandate vaccination?
Yes, but we do not recommend it. Although, the EEOC has affirmed the general rule that employers may require their employees to get the COVID-19 vaccine prior to returning to the workplace, employers who do so must respond carefully and appropriately to employees who indicate that they are not able to receive a COVID-19 vaccination due to a disability or religious belief. In addition, it’s critical that all employees who do not comply with a vaccination requirement be treated equally. For instance, it would be problematic to terminate one employee who does not comply, while not terminating others. Given those qualifications and certain other legal risks, we generally suggest that employers “recommend” that their employees get vaccinated—but do not mandate vaccination.
2. What should employers do if an employee requests an exemption due to a disability or religious belief?
First, employers will need to determine what type of proof will be required. If an employer determines that a religious or medical exemption exists, the employer must make an accommodation for the employee. Such accommodations may include reducing or modifying work duties to comply with social distancing, adjusting an employee’s schedule, or allowing an employee to work from home. The employer will need to assess whether these accommodations are reasonable, without undue hardship, on a case-by-case basis.
3. Can employers encourage employees to get vaccinated instead of mandate it?
Yes. Many employers are electing to encourage employees to get vaccinated instead of implementing a mandatory program. This approach eliminates the need to determine who qualifies for an exception, what proof will be needed, what accommodations can and should be made, and other issues an employer must weigh when requiring vaccinations. Some employers may choose to go a step further and incentivize its employees to get vaccinated. Employers, however, should be cautious because if encouragements, such as additional paid time off or gift cards, are offered to incentivize employees to get vaccinated, accommodations may need to be made for those employees who are not eligible for the incentive due to a disability or religious belief that prevents them for receiving the vaccine.
4. Can employers ask employees if they have been vaccinated?
Yes. Asking an employee if they have been vaccinated is permitted. However, employers should ensure that they do not elicit private medical information. Thus, follow-up questions are not advisable. Employers should consider if it is important, for business purposes, to know precisely who in the office is vaccinated or only to know how many employees have been vaccinated. If the latter satisfies the business concern, it may be prudent to ask anonymously through, for example, an office survey. This can eliminate the possibility of a potential lawsuit by an unvaccinated employee should they later be terminated due to poor performance.
5. Must employers keep safety guidelines in place even after employees are vaccinated?
Yes. Even after employees are vaccinated, safety guidelines must remain in place in the workplace for now. According to the CDC, employers should continue following the guidance for businesses, including masks and social distancing. Other safety measures that have been installed, such as barrier protections, need to remain in place.