COVID-19 has had a devastating effect on small businesses across the U.S. Thankfully, reports indicate that a vaccine for COVID-19 is on the horizon. The Department of Health and Human Services predicts that initial doses could be available as early as January 2021, and early data from Pfizer and Moderna suggest that their vaccines are up to 95% effective–a potential ray of light at the end of the tunnel.
This is positive news for small businesses that need to get back to work using an in-person workforce. However, it also presents some unique challenges regarding the interaction between employers and employees. If an employer needs some or all of its employees to come back to work in person, can the employer legally require employees to get the COVID-19 vaccine for the safety of customers and co-workers?
Is it legal for an employer to require a COVID-19 vaccination?
Employers may actually exercise broader powers to require vaccinations than you might think. Federal laws that protect employees against discrimination and harassment, provide employers some protections, as well.
The U.S. Equal Employment Opportunity Commission (EEOC) allows employers to require vaccination if the illness meets specific standards as set out in the Americans with Disabilities Act (ADA). The “direct threat” standard is defined as something that has a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
In March 2020, the EEOC issued a statement that confirmed that COVID-19 meets the requirements of the direct threat standard. But there are still exceptions to requiring vaccinations that employers should know.
- Medical Exemptions: Under the ADA, employees can be exempt from receiving the vaccination if it will cause harm due to a covered disability.
- Religious Exemptions: Under Title VII, employees can be exempt from the vaccination if they have a “sincerely held religious belief” against the vaccination.
Unless the employee meets either one of these exemptions, the employer can terminate an employee for not getting a required vaccination.
Neither of these exemptions applies to personal objections to the vaccine. That is, the employee cannot simply state that they do not want to get it and be permitted to ignore the requirement.
What if an employee does not want to get vaccinated?
Even though employers can terminate employees for not getting a required COVID-19 vaccination, employers will still have to deal with employees who do not want to get a vaccination. The first question that an employer should ask is whether the employee meets an exemption or needs accommodation.
Step 1: Have the employee file a notice of exemption or accommodation.
If the employee has a medical or religious reason for refusing the vaccination, they should notify you. Although it is not required, it is helpful to have that notification in writing.
Step 2: Evaluate the exemption or accommodation request.
You should use your best judgment to determine if the employee’s request is legitimate, but in many cases, it is also within your rights as an employer to request a physician’s statement supporting a medical exemption. Due to the potential for discrimination, it is a good idea to err on the side of caution when dealing with sensitive topics like religion and medical needs.
Step 3A: Create a reasonable accommodation for your employee if they meet a valid exemption.
If the employee has a legitimate medical or religious exemption, an employer cannot terminate their employment for failure to get vaccinated. Instead, the employer may be required to create “reasonable accommodations” for the worker, which could include things like wearing a mask, working from home, or otherwise isolating the employee from other workers or customers.
Step 3B: Terminate the employee if their exemption is not valid and they still refuse to get vaccinated.
If the employee still refuses to be vaccinated despite having no valid exemption, the employer has the option to terminate the employee.
Should an employer require the COVID-19 vaccine?
As a small business owner, you need to decide whether you will require your workers to get the COVID-19 vaccination. Ask yourself the following questions to get started:
- Can employees continue to work remotely?
- Does the work you do require a lot of contact with other workers or customers?
- Does your industry have an increased risk of spreading COVID-19? (healthcare, restaurants, retail, etc.)
Requiring the vaccine could be the right choice for your company, but as you prepare to implement those requirements, you should do all you can to mitigate risk and set up your company for success. In addition to updating your employee handbook, it can be helpful to work with an employment lawyer to safeguard your business from potential legal backlash, while protecting the health and safety of your employees and customers.
Charley Moore is the Founder and CEO of online legal services platform Rocket Lawyer, which provides affordable and simple solutions for nearly any legal situation. Prior to the advent of Rocket Lawyer, Moore practiced as an attorney for Venture Law Group, where he participated in the early-stage representation of Yahoo! (pre-IPO), WebTV Networks (acquired by Microsoft) and Cerent Corporation (acquired by Cisco Systems). He completed his Juris Doctorate at University of California, Berkeley, and served as a U.S. Naval Officer in the Gulf War.