COVID-19, an unprecedented global health crisis, has sparked numerous changes in the workplace to promote worker safety. With the rollout of the three federally approved vaccines, it seems like the end of the pandemic may finally be in sight. However, with the virus continuing to surge, and people fearful of an uptick in cases once businesses resume normal working hours, employees and employers alike may be wondering what exactly the requirements surrounding the vaccine are and whether vaccines will be mandatory for employees to officially return to work.
The three federally endorsed vaccines are currently approved under emergency use authorization (EUA) by the FDA. As more of the population are starting to get vaccinated, employers may be questioning whether vaccines can be mandated for employees to return to work. The simple answer: outside of a few recognized exceptions, vaccine mandates are most likely legally enforceable for private organizations and universities.
Workplace regulations are typically enacted to promote workplace safety and prevent workplace discrimination under the governing statutes, Title VII of the Civil Rights Act, the Ohio Civil Rights Act, and the Americans with Disabilities Act. In an official statement, the Equal Employment Opportunity Commission has stated that employers may institute vaccine mandates, but they must comply with the relevant statutes and prevent discrimination against those who cannot receive a vaccine due to an underlying disability or a sincerely held religious belief.[i] This means that, should an employee wish to remain unvaccinated because of religious beliefs or an underlying disability, an employer must attempt to make reasonable accommodations for the employee to return to work, unless such accommodations would create an undue hardship for the employer.[ii] Reasonable accommodations could include things like providing masks and other personal protective equipment, implementing social distancing, utilizing alternate or staggered hours, limiting the number of employees in the office at a given time, and having employees working from home. Furthermore, employers are allowed to request proof of a disability that would prevent an employee from getting vaccinated through things like doctor’s notes and health insurance records.[iii] As such, vaccine mandates are able to be implemented as long as reasonable accommodations are being made for those who wish to remain unvaccinated due to religious beliefs and/or disability. If all reasonable accommodations have been made or create an undue hardship for the employer, there are remaining safety concerns, and the employee remains unvaccinated, EEOC guidance states that employers may then prohibit the unvaccinated employee from entering the workplace.[iv]
Another issue is whether employers can request proof of vaccination or, whether such a request is impermissible as it could contain confidential medical information or be a disability related inquiry. Under current EEOC guidance, it is possible for employers to request proof of vaccination from their employees if any separate medical information is removed from the proof of vaccination.[v] While vaccination information should be treated as confidential once received, an employer may request proof of the vaccination itself without triggering violations of the ADA.
Furthermore, refusal to comply with a vaccine mandate without a justification clearly stated under the ADA or Title VII will be difficult for employees to overcome. Employer-employee relationships in the United States are most commonly at will, meaning an employer can terminate an employee at any time for any reason. As such, refusal to comply with a vaccine mandate could be legal grounds for termination of an at will employment relationship. Of course, employees may have recourse under other EEO laws, state laws, or local laws which may prevent automatic termination pertaining to vaccinations.[vi] Furthermore, employers should explore steps such as work from home before resorting to termination.
While it is unclear whether private employers and universities will enact vaccine mandates, they will likely be enforceable. For employers worried about vaccine mandates and the effect it could have on employees with disabilities or religious accommodations, they should familiarize themselves with the EEOC’s most recent guidance pertaining to COVID-19 vaccinations and the requirements under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and the Ohio Civil Rights Act.
[i] See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, K.5 (December 16, 2020).
[ii] Id. at K.6-K.7
[iii] See Ohio Lawyer, Can Private Employers Require Employees to Get Vaccinated for Covid-19, Vol. 35, No. 1, p. 13. citing Tchankpa v. Ascena Retail Grp., Inc., 951 F.3d 805 (6th Cir. 2020).
[iv] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, K.7 (December 16, 2020).
[v] Id. at K.3
[vi] Id. at K.7