Can employers legally mandate employees to be vaccinated with the Covid-19 vaccine? The short answer is yes… but it is not that simple.
When considering mandatory vaccinations, it is imperative that employers understand the various equal employment opportunity laws that protect employee rights from discrimination and unlawful employment practices, including the Americans with Disability Act (ADA) and the Rehabilitation Act, Title II of the Genetic Information Nondiscrimination Act (GINA), Title VII, and the Pregnancy Discrimination Act (PDA). Preparation is key.
In December, the U.S. Equal Employment Opportunity Commission (EEOC) provided updated guidance in light of the vaccination rollouts, specifically addressing mandated vaccinations. This guidance made clear that while employers may mandate and require proof of vaccination, employers should proactively instruct employees not to provide any other medical information to avoid implicating ADA protections. For example, if an employee provides medical information related to a health condition or disability (regardless if related to Covid-19 or a vaccination), the employer may be required to engage in a further interactive process to determine if the employee needs a workplace accommodation. When the employer has knowledge of such medical information – even when no accommodation is requested or needed – there is an increased risk for retaliation or discrimination claims if a future adverse action is taken against the employee at any time in the future.
The EEOC guidance also warns that pre-screening for vaccinations might constitute a disability-related inquiry as such screening is likely to elicit medical information about a pregnancy or conditions such as allergies, preexisting conditions, or autoimmune disorders, and may implicate GINA, the PDA, or Title VII. When deciding whether to implement a mandated vaccination program that is performed at the workplace or by a third-party medical provider, employers must consider this important distinction whether they want responsibility and obligations for having this information. Additionally, if an employer administers the vaccine at the workplace, be aware of state law requirements to perform the vaccination on-site. For example, Indiana requires employers to apply for a Certificate of Compliance or a Certificate of Accreditation and meet the regulations of Clinical Laboratory Improvement Amendments (CLIA) for the tests performed.
Employers must also prepare for employee objections to vaccinations based on a variety of reasons, including for a sincerely held religious belief or practice, or for a disability. In either scenario, employers are required to make an individualized assessment to determine whether the unvaccinated employee would pose a direct threat that cannot be eliminated or reduced by a reasonable accommodation. This is not a simple determination and often requires input from legal professionals.
When determining whether to mandate vaccinations, employers should:
- consider whether the mandated vaccination program is performed at the workplace or by a third-party health care provider and understand state law requirements;
- anticipate employee objections to the mandate and prepare for accommodation requests;
- and train all supervisors and managers on their important role on maintaining confidentiality related to known medical information and how to respond to vaccine-related accommodation needs.
Kroger Gardis & Regas employment lawyers are based in Indianapolis and help businesses, municipalities, and employees resolve employment law issues, handle employment litigation, and develop creative employee benefits to promote employee retention.
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