By Peter M. Langdon
As COVID-19 vaccines become more available, many employers are wrestling with the decision of whether or not to require employees to be vaccinated. Yes, an employer is permitted to require employees to obtain a COVID-19 vaccination. However, the Equal Employment Opportunity Commission (“EEOC”) urges employers to consider whether the need is job related and consistent with business necessity when determining whether to subject employees to a mandatory vaccine policy.

Under the Americans with Disabilities Act (“ADA”), an employer cannot require a medical examination unless the examination is job-related and consistent with business necessity. The EEOC explained that the administration of a vaccine, either by an employer or by a third party with whom the employer contracts, is not considered a medical examination for purposes of the ADA. As a result, the ADA generally does not prohibit an employer from requiring a vaccine.

Another factor an employer needs to consider prior to implementing a mandatory vaccine policy is an employee’s sincerely held religious belief. Under Title VII of the Civil Rights Act of 1964, an employer cannot discriminate against an employee because of the employee’s sincerely held religious belief, practice, or observance. If an employer is put on notice that an employee’s sincerely held religious belief prevents him or her from receiving a vaccine, the employer must provide a reasonable accommodation for that sincerely held religious belief, practice, or observance.

Employers also need to consider whether an employee may have a disability that prevents him or her from receiving a vaccine. The ADA permits an employer to have a safety-based qualification standard for employment (i.e., a vaccination policy). However, if that standard screens out, or tends to screen out, an individual with a disability from the workplace, the employer must show that the unvaccinated individual poses a direct threat in the workplace. If any such individual poses a direct threat, the employer cannot exclude that person from the workplace, or take any other adverse action, unless the employer cannot provide a reasonable accommodation that would eliminate or reduce the risk so the unvaccinated individual does not pose a direct threat.

The COVID-19 pandemic has required employers to consistently adapt to a rapidly changing environment. AKC Law is here to help you determine whether a mandatory vaccination policy is right for your workplace. Contact Peter Langdon at plangdon@akclaw.com or by calling 402.392.1250.