TRANSFORMING Teams By Claudia St. John
Mandating the vaccine 0 0 a close, we started fielding questions from clients about whether they could require employees to obtain a CO I -1 vaccine as a condition of employment. These questions were sparked by the initial rollout of vaccinations for front-line health care workers and nursing home residents and the alarming spike of CO 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 likely have access to the vaccine ahead of the general population. So while the question of whether to require a CO I vaccine isn’t imminent for most businesses, now is the time to think about what your strategy will be.
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Can employers require employees to get vaccinated? The answer to this question essentially is yes. In ecember, the EEOC issued guidance stating that a CO 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 EEOC deemed such a requirement permissible, they stated that employers should have a well-articulated business reason for requiring the vaccine, such as the need to protect the health of employees or clients, or the need to travel, work with vulnerable populations, or work in close quarters with others. The EEOC 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 work from home, isolate from other workers, or significantly adjust work duties to provide protections from the
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. 24
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The Merchant Magazine n February 2021
general employee population. Under the Americans with isabilities Act (A A) and Title 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. The EEOC also cautioned employers who plan on requiring a vaccination to be careful not to violate employees’ rights when asking the sort of health screening questions that will likely 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 EEOC advises that employers should consider making vaccinations voluntary or should have a third party administer all aspects of the vaccination process. Along the same lines, if the employer plans to require proof of vaccination, they need to take care not to pursue the reasons why an employee was unable to obtain the vaccine. That’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 risk of substantial harm to the health or safety of the individual or others. In other words, be ready for a lawsuit. To be safe, if an employer elects to require a CO I vaccine, they must: Exercise care in administering the vaccine and consider outsourcing the entire process to a third party Refrain from asking any unnecessary health screening questions eep confidential any medical information received from employees, and Be prepared to engage with any employees who request accommodation or seek an exemption from the vaccination due to medical or religious reasons. We strongly encourage employers to also lead by example in their approach to taking the vaccine and, thereafter, to continue to maintain safe social distancing and use of PPE. Building-Products.com
