Can an Employer Require COVID-19 Vaccinations of Employees?

Vaccinations for the COVID-19 virus began to be administered here in Amarillo for the first time on Tuesday, December 16, to hospital workers, and now employers are asking if they can require their employees to get vaccinated when vaccines become available to more of the public.

In general, the answer is, yes, an employer can require employees to get vaccinated in order to provide employees and customers a safe environment. Medical and dental offices, schools, food production facilities, nursing homes and other high-risk workplaces will likely mandate vaccinations for their employees. But should other employers require COVID-19 vaccinations?

Duty to Provide a Safe Workplace

A Texas employer currently can legally require vaccinations to provide a safe workplace for their workers. No Texas law prohibits this. As for the relevant federal agencies, the Occupational Safety and Health Administration requires employers to provide safe workplaces. And the Equal Employment Opportunity Commission has just indicated in new guidance that it will not object to employers mandating vaccinations.

OSHA’s general duty clause requires that each employer furnish to its employees a workplace that is free from recognized hazards that could cause death or serious physical harm. A fully vaccinated workplace could provide that safety to your employees. And that mandate could protect you as an employer from federal intervention with the new administration in Washington, D.C. Employers can expect increased enforcement by OSHA under the Biden administration, so mandatory vaccinations will give your company a defense to any allegation that you did not make your employees safe from the recognized dangers of COVID-19.

The EEOC has recently issued guidance supporting mandatory vaccination. In new Equal Employment Opportunity Commission guidance on vaccinations released December 16 (question K5), the EEOC says that an employer can impose on its employees “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace”.

Disability and Religious Objections

Texas employment is generally “at will”, meaning among other things, that an employer can set its own policies and an employee who does not like those policies can quit. Under current Texas law, that holds true with mandatory vaccinations, as long as Texas employers carefully handle two types of legal objections—disability and religious accommodation.

On Wednesday, the EEOC issued specific guidance about vaccinations at work (section K). As expected, the EEOC says that employers will be allowed to mandate COVID vaccines, with those two exceptions: (1) religious objections (Christian Scientists and some branches of Islam come to mind) under Title VII based on a sincere religious belief; and (2) disability (such as Guillain-Barré Syndrome) under the Americans with Disabilities Act.

Being an anti-vaxxer is not a religion, so that belief will not be enough to claim an exemption. Courts have confirmed in the past that social, political or economic philosophies are not protected under Title VII protection of religion, so unless an employee has a sincere religious objection or a legitimate disability, you don’t have to accommodate an employee’s failure to cooperate by allowing him/her to opt out of the vaccinations.

You do have to be careful as you address religious or disability objections to vaccination. The EEOC wisely points out in its new guidance (question K5):

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability [or religious objection] and know to whom the request should be referred for consideration.  Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). 

In other words, if an employee claims a religious or disability exemption, that does not mean the employee is automatically excluded from the workplace. There will have to be a dialogue with the employee to determine if any reasonable accommodations exist to allow the unvaccinated employee to continue to work while protecting other employees and customers. Depending on the particular workplace, there may or may not be an accommodation that will work and not unduly burden the employer.

Vaccination Cost and Procedures

Of course, if your company is requiring the vaccine, the business will need to absorb the cost of it, if any, over and above what the company’s group health insurance will pay. I recommend that you promptly start to clearly communicate to your employees that vaccinations will be required and that the company will cover the cost.  Once we know more about the overall timeline by which vaccinations will be available, you can set a deadline by which all employees must provide proof that they have had the vaccination. Tell your employees to go to a pharmacy or other healthcare provider to get the vaccine rather than trying to set up a vaccination clinic at your workplace. That way you don’t have to ask intrusive medical questions of your employee in violation of the ADA and you won’t be taking on any unnecessary liability and the headaches of managing the administration of vaccinations.

Once the employee has been vaccinated at the pharmacy, the EEOC agrees that it is nondiscriminatory under the ADA (question K3) for an employer to request documentation that the employee has been vaccinated and that this does not cross over into “disability-related inquiry” that may be prohibited by the ADA:

There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related.  Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  

Termination for Failure to Get Vaccinated

In general, a Texas employer will be able to terminate employees who do not cooperate with getting the vaccine as long as the employer accommodates religious and disability objections. Even those falling into these protected classes may wind up excluded from the workplace or ultimately fired. The EEOC said in answer to K7:

If an employee cannot get vaccinated for COVID-19 because of a disability (K.5) or sincerely held religious belief, practice, or observance (K.6), and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker.

Be careful. This is not Employment Law 101 stuff. Do not decide to terminate an employee for vaccination refusal without talking to your employment attorney before you take any adverse action against the recalcitrant employee and especially against an employee with a legitimate religious or disability objection.

Company Liability Concerns and Optional Vaccination Policy

 What about a company’s liability for an employee’s bad reaction to the vaccination when an employer mandates the vaccination? It is not a big concern of most employment lawyers. First, businesses are entitled to rely on the FDA’s approval process to assure that it is safe and the FDA’s fact sheet to provide your employees with informed consent. Second, in the unlikely event of a bad reaction to a mandatory workplace vaccination, your employee’s remedy is a worker’s compensation claim for an on-the-job injury. That is an injured employee’s exclusive remedy as long as you carry worker’s compensation insurance, meaning the employee cannot bring a lawsuit in court against you for that injury. That is one of the best reasons to subscribe to worker’s compensation insurance even though it is not mandatory in Texas.

If you as an employer are only comfortable encouraging vaccination of your employees rather than mandating it, you will have to figure out how to deal with the projected 50% of your employees who opt out. They will be subject to the logical consequences: constant mask wearing, social distancing, remote work if the employee’s job duties can be performed remotely, or other isolation indefinitely. You will have to police the distinction between the vaccinated employees and the unvaccinated ones carefully, but seeing their vaccinated coworkers safely gathering together the way we all did pre-pandemic may eventually convince most of your workforce to get the vaccination without mandating it.  

Leave a Reply

Your email address will not be published. Required fields are marked *