Ask Rita: We Can Require Employees to Receive the Covid-19 Vaccine—But Should We?

It is important to take into account legal and practical considerations so as to balance community safety with the impact on individuals.

Ask Rita: We Can Require Employees to Receive the Covid-19 Vaccine—But Should We?
8 mins read

With Covid-19, the need to prevent further spread of the virus is the top priority.

Dear Rita,

Our nonprofit has several employees who provide a variety of direct services personally to our clients, in our offices as well as other locations. We have taken great measures since the pandemic struck to protect both our clients and our employees and to keep them as safe as we possibly could.

Now that we are fortunate enough to have a vaccine available that we feel could protect our clients and employees to a greater extent, we are debating whether we should require employees to get vaccinated as a condition of employment.

Do you have any suggestions for us in helping us make our decision?

Safety First

Dear Safety,

The arrival of the Covid-19 vaccines is remarkably good news, but as with nearly every aspect of the pandemic that affects the workplace, the availability of the vaccine presents many complex questions and, still, much uncertainty in finding answers.

Before the pandemic, the subject of requiring employees to receive vaccines, for the flu, for example, was rather straightforward. If there was no regulatory or statutory requirement allowing this, the customary guidance was that an employer can strongly encourage, but not require, employees to get vaccinated.

With Covid-19, the need to prevent further spread of the virus is top priority, so the usual rules have been reconsidered.

The EEOC’s Guidance

The Equal Employment Opportunity Commission (EEOC) has affirmed that employers can require employees to be vaccinated against Covid-19, with certain limitations to be briefly covered here. Every employer considering requiring the vaccine should review this guidance in full: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

To begin with, keep in mind that the Covid-19 vaccine may be required by local or state health authorities. Before you develop any policies for your company, you should research and analyze county, state, city, or local municipality requirements.

In addition, requiring vaccines is subject to possible exemptions, such as those that might follow from a specific medical condition or religious beliefs. If an employee seeks an exemption based on either of these, you are entitled to ask for documentation that supports this request.

But requesting such an exemption does not mean the automatic granting of such exemption. If granting an exemption from vaccination, for example, would result in what the EEOC terms an “undue hardship” or a “direct threat” to the workplace because of the “significant risk of substantial harm to the health or safety of others that cannot be eliminated or reduced by reasonable accommodation,” then you can deny the request.

Before making such a determination, you will want to conduct an individualized assessment of all the circumstances involved.

With respect to documentation, employers may also require employees to provide proof of having received the vaccine. The EEOC has determined that such proof does not constitute a prohibited “disability-related inquiry.” However, any such records, whether required or not, along with documentation of proof of receipt must be maintained confidentially.

To support these and other measures with regard to Covid-19 vaccination, make sure to set out a written policy on vaccines that provides recognition and acknowledgement of the ADA considerations set out by the EEOC.

While the EEOC guidance can provide a clear set of factors that lead you to the decision to require vaccines, there are practical and reality-based factors you should consider before imposing this requirement.

Here, for example, are several situations taken from real life:

  • Leaving legitimate medical or religious accommodations aside, what will you do if your employees refuse to get vaccinated because they have a generalized fear of shots that dates to childhood?
  • The fact that the current vaccines were approved quickly under the provision the FDA makes for “emergency use” often causes employees to question their safety. Employees may refuse to get vaccinated because they fear that these vaccines have not been fully tested and that the qualified approval means great risk.
  • You have 25 employees. Twenty refuse to get vaccinated for various reasons.

Do you fire all these employees for refusing to follow the order to get vaccinated?

Ask yourself whether these situations justify termination of employment for failing to follow the requirement of receiving the vaccination or whether you should allow remote work.

Despite the clear differences in the underlying reasons, would each of these refusals result in the same risk to health and safety if these individuals are allowed to return to work?

A Possible Middle Road

Unless public health orders or other mandates support the need for a policy requiring the vaccine, recent surveys suggest that most employers favor vaccination instead of requiring it. Such a policy eliminates the need to make difficult HR decisions such as evaluating requests for exemption and terminating or disciplining employees who refuse to comply with a vaccine requirement.

An “encouragement” policy allows the employees to make their own decision, which, in light of the uncertainty that many individuals have about getting any of these vaccines at such an early stage of development, would allow them time to research, consult their medical providers, and wait as further progress on the availability and success of vaccines is made. Consult your counsel for how the policy should be drafted.

If you follow a policy such as this, you can address ongoing safety concerns by ensuring that appropriate measures such as social distancing and personal protective equipment are carefully and strictly followed as pertains to the type and size of the workforce.

Employees who choose not to be vaccinated might still be permitted to work remotely, where possible, or be offered other options, including the ability to take a leave of absence. An approach such as this would reflect a sense of empathy and flexibility on the part of the employer, with employees retaining a measure of autonomy and sovereignty over their own healthcare choices.

Many employers have gone a step further and adopted incentive programs to encourage employees to get the vaccine. Such incentives typically include extra paid days off, paid time off to get the vaccination, and small cash or gift card rewards. These options would, in most cases, be appreciably better and more productive than losing a valued employee.

While the details of a vaccine policy remain with the employer, it is important to take into account legal and practical considerations so as to balance community safety with the impact on individuals.

As with any such decision, given the personal and professional burdens the pandemic has created, a sense of empathy, flexibility, and perhaps most importantly, creativity, should also inform the ultimate decision.

About the Author

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Mike Bishop is a member of the State Bar of California and has been admitted to practice in a number of federal district courts in both California and Ohio. During his legal career, Mike worked for 32 years with a Sacramento law firm, where he focused on employment litigation in both state and federal courts. During that time, he defended employers in litigation.

In 2016, he began his work as an Employment Risk Manager for the Nonprofits Insurance Alliance, assisting nonprofits in evaluating employment risks. Mike lives in Lakewood, Ohio, and is a graduate of the University of California, Davis, with a bachelor’s degree in political science, and a 1982 graduate of the University of the Pacific, McGeorge School of Law.

Articles on Blue Avocado do not provide legal representation or legal advice and should not be used as a substitute for advice or legal counsel. Blue Avocado provides space for the nonprofit sector to express new ideas. Views represented in Blue Avocado do not necessarily express the opinion of the publication or its publisher.

6 thoughts on “Ask Rita: We Can Require Employees to Receive the Covid-19 Vaccine—But Should We?

  1. Well done essay. Very balanced. I should like to add that in a case I am aware of, employees at a small non-profit were given the option to work remotely and have done so successfully. Precautions were and remain in place at the office. It also does give an employer an opportunity to convey whether an employee IS valued, or treated like they are not, if it comes to letting them go. Having been in a position to be involved with the hiring process, I can say that losing one, if not more of employees, regardless of how a current leader values them will make life for the leader very complicated. Especially if one is a trusted, highly regarded employee by others in the community that is served. The employee will be able to speak publicly and on social media freely with no concerns that they would lose their job for violating policy at that point. Not to even mention the time lost and expense to advertise to find a replacement for that employee and/or the burden on other staff in the interim.
    People should be left to make their own decisions re their health care and treatment. In fact, it even makes me wonder what the LIABILITY IS TO AN EMPLOYER who forces an employee to accept the vaccine. And where does this termination fall in terms of one then being unemployed/unemployment. Would unemployment feel the employee was let go for just cause so the claim is denied?

    1. Yes, I wonder the exact same thing – what is the liability to the employer who forces vaccines? I too believe that people should be left to make their own decision about their health care and treatment and this is why we have HIPPA laws. Wouldn’t it make more sense to require weekly testing for covid if there were truly a concern? Those who have been vaccinated can still carry and transmit the virus, so why wouldn’t they take a test as well?

    2. It’s very difficult to predict what unemployment would do with this kind of termination, however, I don’t think termination for this reason is the kind of misconduct that would preclude benefits in many jurisdictions.

  2. For those employees who are still reluctant to get the vaccine, or cannot for health and/or religious reasons, why not suggest a weekly covid test be taken? The test results are emailed and that email can then be forwarded to appropriate management. This would seem like a much more subtle and supportive way to create a safe environment and still keep those employees who have not been vaccinated.

  3. A very good treatment of the subject. Mike, what do you suggest for a company who adopts a vaccine required (w/ exceptions as outlined) policy which is planning on hiring? [We’re in an “at will employment” state, if that makes a difference.]

    We’re a one-employee office, and I’ll soon be fully vaccinated. The training portion of the hire is fairly intensive and over-the-shoulder/close proximity with many pieces which take extended amounts of time, so having an unvaccinated new hire, even masked, would pose a significant risk.

    Would you suggest putting the requirement right in the advertisement? Or maybe just in the linked full job description? Or would you wait until point of offer? [The latter seems less desirable, since the individual might become very invested in applying for the job only for both the applicant and the nonprofit to find out that the person would refuse vaccination on a basis other than religious, medical condition or ADA status.]

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