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What Employers Need to Know About Employees and Vaccinations

As vaccines begin their initial distribution, employers will need to stay abreast of policies around vaccinating employees.

In many parts of the world, the COVID-19 pandemic continues to be a massive burden on both personal and professional lives. As many workers remain remote, it is still a waiting game to see when it will be safe to return to the workplace. One step forward is with the development and approval of COVID-19 vaccines, which are already being distributed and administered to frontline workers and the elderly. This raises the question: what do employers need to know should they choose to mandate vaccines as their employees return to work?

While guidelines for employers will differ around the world, the U.S. Equal Employment Opportunity Commission (EEOC) released guidance about what employers need to know about COVID-19 and how to remain compliant with the Americans with Disabilities Act (ADA) and other related laws as vaccinations become more frequent throughout the new year. Employers have a strong case to require employees to get vaccinated as long as their policies have certain exceptions and are consistent with business necessity.

As the vaccine becomes more widely available, the employer may administer the vaccine or hire a third party. According to EEOC guidance, administration of the vaccine is not considered a “medical examination” for purposes of the ADA. However, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability. Any information obtained about disabilities by the employer must remain confidential.

An employer may ask an employee to show proof of receipt of a COVID-19 vaccination. Doing so is not likely to elicit information about a disability unless the employer asks the employee why the employee did not get the vaccine. If an employee does indicate that they are unable to receive the vaccine due to a disability, the employer must prove that the unvaccinated employee would pose a direct safety threat to others in the workplace.

An employer may also have an employee who indicates that they cannot receive the vaccine due to a sincerely held religious practice or belief. In the case of employees who cannot receive the vaccine due to a disability, or sincerely held religious belief or practice, the employer must make reasonable accommodations. On the other hand, employers do not have to accommodate secular or medical beliefs about vaccines.

Accommodations would likely include working remotely or taking eligible leave under the Families First Coronavirus Response Act, Family and Medical Leave Act, or any other employer policy. If the employer cannot provide such accommodation, the employer is authorized to exclude the employee, but does not mean the employer can simply terminate the employee.

It’s also important to consider when an employer does not require a vaccine. In this case, an employee may assert that the employer has failed to provide a safe and healthy work environment as required by the Occupational Safety and Health Act. While this may not necessarily be the case for every workplace, understanding the implications for failing to have a safe return-to-work plan is crucial in ensuring that employers are compliant while also keeping employees’ safety top of mind.

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How This Impacts Mobility

Such guidance is vital for employers who are considering requiring their employees to get vaccinated, especially if doing so means getting one step further to normal business operations and pre-pandemic levels of workforce mobility. Employers relocating employees should also first determine if the host country will require a certification of the vaccination for entry. Should any member have questions regarding this guidance, please reach out to Vice President of Member Engagement and Public Policy Rebecca Peters, rpeters@worldwideerc.org.

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