Many frontline workers and at-risk individuals will be receiving a COVID-19 vaccine during the coming months. The question on employers’ and employees’ minds alike is whether employers can require their employees to receive the vaccine.
Recent Equal Employment Opportunity Commission (EEOC) guidance says yes, employers can require their employees to receive the COVID-19 vaccine. But, employers must make exceptions for employees’ religious and disability accommodations in accordance with Title VII of the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA) and the Ohio Civil Rights Act.
Accommodation and privacy
Employees with a sincerely held religious belief, practice or observance that equates to that of traditional religious views may request that an employer provide a reasonable accommodation for the employee’s religious practice. Additionally, employees who have established a disability, as defined by the ADA and the Ohio Civil Rights Act, can request a reasonable accommodation in order to avoid receiving the COVID-19 vaccine.
Examples of reasonable accommodations include providing masks, gloves and other personal protective equipment or allowing an employee to work remotely while other employees go back to the office. If remote work is not feasible, then the employee could be reassigned to a less populated worksite. Employers may inform the unvaccinated employee that if the employee wishes to attend in-person work events – such as holiday parties or social outings – then the unvaccinated employee will have to continue wearing a mask, remain socially distanced and may have to eat separately from their coworkers to minimize potential exposure.
Employers may request proof of a disability through a doctor’s note, prescription or health insurance record. Once an employee requests an accommodation, an employer should document it in the employee’s personnel file and then engage in an interactive process to determine if a reasonable accommodation is feasible and does not pose an “undue hardship” for the employer. Undue hardship may occur if, for instance, an unvaccinated employee must be in contact with others for their work. Political beliefs regarding the vaccine are not a sufficient reason to request an accommodation.
Current EEOC guidance states that employers who mandate that their employees receive a vaccine may prohibit unvaccinated employees from entering the workplace if all reasonable accommodations would not reduce or eliminate the risk of unvaccinated employees exposing other employees to the virus.
With or without implementing a vaccine mandate, employers can ask employees to provide proof of their vaccination as long as it does not contain any other medical information. Any information collected regarding vaccinations should be treated as confidential.
An employer may encourage its employees to receive a vaccine by covering the cost or offering incentives.
How an attorney can help
An employer should balance employee relations and workplace culture when considering whether to mandate that employees receive a vaccine. If an employee requests an accommodation in order to forego a vaccine, the employer should take the time to evaluate and consider the request on a case-by-case basis.
Applicable laws, regulations and guidance are ever-changing regarding this issue. An experienced employment law attorney can help both employees and employers navigate these issues as they stay up to date regarding the changing landscape of COVID-19 laws.
About the author – Jade Robinson is an attorney with Faruki PLL in Cincinnati. Her practice focuses on employment law, business and complex commercial litigation matters and contractual disputes. She earned her undergraduate degree in criminal justice and police studies from Eastern Kentucky University and her law degree from the University of Cincinnati College of Law. “Law You Can Use” is a consumer legal information column provided by the Ohio State Bar Association. Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.
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