Can employers in the US make covid-19 vaccine mandatory?

Restrictions are being lifted across much of the US which means workers are being called back to their workplace, but some are worried about whether it will be safe. The federal government agency that protects employees from discrimination, the Equal Employment Opportunities Commission (EEOC), issued new guidance on Friday on whether employers can require their workers to get vaccinated.

Employers can legally require their employees to take safety measures to ensure a safe workplace for all staff, as well as other vaccines, this now includes getting vaccinated against covid-19. However, the agency recognizes that some individuals or groups could have a harder time complying with a vaccination requirement and that this should be taken into consideration.

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Employers can encourage but not coerce their workers to get vaccinated

The Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act and other federal laws give employees exemption from companies mandating immunization for medical or religious reasons. The company must provide these workers with reasonable accommodations, which could include change of job task or moving the worker to another workspace.

The EEOC in its statement said that an employer may give staff incentives to get vaccinated but that incentive should not be “so substantial as to be coercive.” Such an incentive might make employees feel pressured to reveal medical information from pre-vaccination disability-related screening questions that they don’t want to disclose. However, an employer can offer an incentive for an employee to voluntarily present documentation or other confirmation verifying that the employee received a covid-19 vaccination.

But employers cannot inquire as to why an employee chooses not to get vaccinated. “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.'" The employer is also not allowed to reveal any other vaccination information.

The limits of the incentives a company can provide is not given but some possible incentives are stated. Employers can “offer time-off for vaccination, particularly if transportation is not readily available outside regular work hours.” Companies can provide employees with information on low-cost or free transportation in their community to shuttle people to and from vaccination sites. Employers can also raise awareness of and educate their employees on the benefits of getting vaccinated.

Can you be fired if you refuse to get vaccinated?

Employers are given fairly wide latitude on firing employees, but it would be illegal to apply a vaccination requirement in a way that treats employees differently. This could be based on race, national origin, religion, sex, sexual orientation, gender identity, pregnancy, disability, age, or genetic information. However, under the ADA workers who don’t want to be vaccinated for medical reasons or because they have religious objections are eligible to request an exemption.

In this case the employer would have to provide reasonable accommodation. This could mean that the employee be provided with necessary personal protection equipment such as non-latex gloves, modified face masks or other such equipment. It could also mean providing physical distancing, modified shifts, telework arrangements, or work reassignment. That is as long as those accommodations don’t cause “undue hardship on the operation of the employer's business under the ADA or Title VII.”

"If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.”