Navigating Mandatory COVID-19 Vaccination as an Employer

According to recent guidance published by the U.S. Equal Employment Opportunity Commission (EEOC), private employers may require employees to receive a COVID-19 vaccination. The EEOC enforces workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, both of which impact an employer’s ability to require vaccination against COVID-19. In addition, emerging, state-specific regulations will determine employers’ vaccination policies. Prior to enacting a vaccine requirement, employers must understand their legal responsibilities under federal and state law.

The ADA allows an employer to enforce a policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” This is the same standard that enables employers to require COVID-19 testing of employees who exhibit symptoms before allowing those employees to enter the workplace, and it is now being applied to enable employers to require vaccinations.

When applying this standard to required vaccinations, the employer must examine whether such a requirement screens out, or tends to screen out, an individual with a disability. For example, persons who are immunocompromised or taking certain medications may be unable to receive the vaccine due to a qualifying disability. If so, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r).

A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others in the workplace to the virus.

Even after the employer concludes that there is a direct threat, the employer cannot immediately exclude the employee from the workplace or take any other action. The employer must still determine that there is no way to provide a reasonable accommodation that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.

Employers must also consider whether any state-specific laws pertain to their vaccine requirements. While not yet in effect, legislation proposed in a number of states would restrict an employer’s ability to require vaccination. Some of this legislation would prohibit employer-required vaccinations outright, while, in other states, the legislation would permit required vaccinations only for employees in healthcare facilities or for those who work with medically vulnerable populations. The proposed legislation in Colorado would impose a broad restriction on employer-required vaccinations by prohibiting employers from taking adverse actions against employees or applicants based on vaccination status.

Employers must be ready to adapt their policies as the range of requirements applicable to mandatory vaccinations expands, and this is an area ripe for employee litigation. It is highly recommended that employers speak with an attorney to determine whether their current or proposed policy complies with federal and state law.

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