Vaccine Mandates in the Workplace

Mark Morgan, J.D.      

 

     With the Covid-19 pandemic still very much at the center of organizational work arrangements, many organizations are pushing their employees to be vaccinated. In addition, many organizations are making it a requirement to be vaccinated as a condition of one’s employment. While the Covid-19 vaccine has created a plethora of debate among many people, the vaccine requirement by organizations is growing as the Covid-19 Delta variant surges.

      So, can a workplace mandate that its employees show proof of being vaccinated against Covid-19? In general, the answer is yes. Just like organizations requiring proof of being vaccinated against the flu or showing a negative tuberculosis test as a condition of employment, the vaccination program must “Be job related and consistent with business necessity” (Americans with Disabilities Act). In addition, the Americans with Disabilities Act (ADA) states that employers can have policies that require that “individuals shall not pose a direct threat to the health or safety of individuals in the workplace”. In the case of the Covid-19 vaccine, the vaccine is job related and a business necessity because it enhances the protection of the workforce against Covid-19. Just in June, President Biden announced that all federal employees must show proof of being vaccinated against Covid-19. Since then, many large and small organizations have followed suit in the attempt to combat the virus and ensure workplace safety.

          While the ADA lays the foundation for allowing health requirements as a condition to work, the law also realizes that not all individuals can succumb to all health requirements. The ADA states that employers must allow for reasonable accommodations to those that cannot be vaccinated for various reasons, unless it poses an undue hardship to the employer. Having a disability or sincerely held religious belief are such reasonable accommodations that employers will need to work with. If an employee is not vaccinated and can provide proof of a health condition (such as pregnancy) or religious belief that would prevent the employee from being vaccinated, the employer should be prepared to utilize alternative ways to enhance workplace safety. Requiring an unvaccinated employee to wear a mask, social distance and/or get routinely tested for Covid may be an option for these employees.

        What happens if a worker refuses to be vaccinated? This is a common question that many human resource departments are dealing with currently. Simply put, if an   organization requires its employees to be vaccinated and an employee refuses, absent an accommodation, the employee can be   terminated. Just earlier in August, three employees at CNN were terminated for that reason. While we are in the early stages of vaccine   implementation among organizations, it will be interesting to see what legal caselaw develops as a result of employees challenging the   legality of vaccinations. However, it is very clear that federal agencies such as the Equal Employment Opportunity Commission, White   House, and a majority of the United States Congress largely favor vaccines.

       Employers that wish to require its employees to be vaccinated should follow a few rules. First, make sure you have a company policy in writing that specifies a date by which employees must be vaccinated by. Second, make sure the policy is applied across the board, regardless of race, age, gender, etc. Third, ensure that the organization is equipped to handle reasonable accommodations to the vaccine requirement. Lastly, be transparent and honest with employees about the reasons for getting vaccinated so that employees know that their health and safety is a top priority for the organization.

        If you would like some assistance in creating your workplace vaccine policy or further guidance in implementing a vaccine policy, contact Cornerstone today.