COVID-19 Vaccine: Guidance for EmployersBy Gwen Griggs on 12.23.2020
As COVID-19 vaccines become available throughout the US, employers may be wondering if they can require their workforce to be vaccinated before returning to work. The short answer is yes, but employers should take care to follow certain guidance when building a vaccination policy for its staff. Below is a list of frequently asked questions about employer best practices for requiring the COVID-19 vaccine.
1. Can employers require the COVID-19 vaccine without violating federal law?
Yes. Federal law does not prohibit employers from requiring employees to get a COVID-19 vaccine.
2. Does it violate the Genetic Information Nondiscrimination Act (GINA) for employers to require vaccination leveraging mRNA technology?
No. Employers can require vaccines using mRNA technology without violating GINA. Employer should not, however, inquire about an employee’s genetic information, family histories, or other medical information.
3. Should employers provide COVID-19 vaccines at work?
The best practice is to require employees to get the vaccine at a pharmacy or through their personal healthcare provider so that related medical inquiries and pre-vaccination screenings are not attributable to the employer. Employees should also request proof of vaccination that does not disclose any of their personal medical information to avoid implicating the American’s with Disabilities Act (ADA).
4. Can employers inquire about whether an employee has been vaccinated?
Generally, yes. Asking whether an employee has been vaccinated is not likely to be considered a “disability-related” inquiry, which employers are prohibited from asking. However, employers should not ask why an employer has or has not been vaccinated, as such question may elicit information about an employee’s disability, which would subject such questions to the ADA’s “job-related and consistent with business necessity” standard.
5. Should employers look to the Centers for Disease Control and Prevention for guidance with respect to vaccination policies?
Yes. The CDC is an appropriate resource for employers to consult when determining the details of its vaccination policy.
6. Can employees refuse to get the COVID-19 vaccine for religious or medical reasons?
Yes. If an employee refuses to get the vaccine due to religious beliefs or an underlying medical issue or disability, the employer should engage in the “interactive process” with the employee in an attempt to find a reasonable accommodation that allows the employee to continue in her role without causing the employer undue hardship.
7. What if an employer cannot provide a reasonable accommodation to an employee who cannot comply with the vaccination requirement because of a disability or sincerely held religious belief?
In this case, it would be lawful for the employer to exclude the employee from the workplace. This does not necessarily mean that the employer can terminate the employee. The employer should consult counsel about whether the employee has any other rights under the EEO laws or other federal, state, or local laws.