TRANSFORMING Teams By Claudia St. John
Mandating the vaccine a close, we started fielding uestions from clients about whether they could re uire employees to obtain a C I - vaccine as a condition of employment. hese uestions were spar ed by the initial rollout of vaccinations for front-line health care wor ers and nursing home residents and the alarming spi e of C I infections across the country during the holiday season. While vaccination of the general population is still a few months away, many of our clients have been deemed essential businesses and therefore will li ely have access to the vaccine ahead of the general population. So while the uestion of whether to re uire a C I vaccine isn t imminent for most businesses, now is the time to thin about what your strategy will be.
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Can employers require employees to get vaccinated? he answer to this uestion essentially is yes. In ecember, the EE C issued guidance stating that a C I vaccine, administered by an employer or a third-party administrator on behalf of an employer is not a medical examination and is permissible. While the EE C deemed such a re uirement permissible, they stated that employers should have a well-articulated business reason for re uiring the vaccine, such as the need to protect the health of employees or clients, or the need to travel, wor with vulnerable populations, or wor in close uarters with others. he EE C also cautioned that employers must provide “reasonable accommodation” to employees who either are unable to receive a vaccine due to a medical condition or due to a “sincerely held religious belief.” A reasonable accommodation may include allowing an employee to wor from home, isolate from other wor ers, or signifi-
Q. Can I as an employer require my employees to get a vaccine for COVID?
A. Yes, the EEOC recently advised that employers are within their rights to require a COVID vaccine as a condition of employment. Employers must, however, provide reasonable accommodation for those who cannot take the vaccine due either to a medical condition or to a sincerely held religious belief as provided under the Americans with Disabilities Act and Title VII of the Civil Rights Act. At this point, our recommendation to employers is to start with a positive, voluntary program before wading into the challenges posed by mandating the vaccine. Of course, we encourage employers to seek our advice or the advice of legal counsel before moving forward with a policy. 28
n Building Products Digest n February 2021
cantly ad ust wor duties to provide protections from the general employee population. Under the Americans with isabilities Act A A and itle II of the Civil Rights Act, employers must allow reasonable accommodations such as these as long as providing the accommodation doesn t cause “undue hardship” for the employer. he EE C also cautioned employers who plan on re uiring a vaccination to be careful not to violate employees rights when as ing the sort of health screening uestions that will li ely be necessary in order to ensure there are no underlying medical reasons for which the employee should not receive a vaccine. Because of this, the EE C advises that employers should consider ma ing vaccinations voluntary or should have a third party administer all aspects of the vaccination process. Along the same lines, if the employer plans to re uire proof of vaccination, they need to ta e care not to pursue the reasons why an employee was unable to obtain the vaccine. hat s unless they can argue that the employer had a reasonable belief that the employee s refusal to provide their own protected medical information concerning their inability to receive the vaccine poses a significant ris of substantial harm to the health or safety of the individual or others. In other words, be ready for a lawsuit. o be safe, if an employer elects to re uire a C I vaccine, they must Exercise care in administering the vaccine and consider outsourcing the entire process to a third party Refrain from as ing any unnecessary health screening uestions eep confidential any medical information received from employees, and Be prepared to engage with any employees who re uest accommodation or see an exemption from the vaccination due to medical or religious reasons. We strongly encourage employers to also lead by examBuilding-Products.com
