Requiring Vaccinations: Key Legal Considerations Driving Return to Work Policies

Tim Dowd, MBA, CEO of Accurate Background

It goes without saying that 2021 has seen remarkable shifts within our country. During the first half of the year, as vaccinations became readily available to larger population segments, we saw the country begin to wake up and move again—travel notably increased, businesses resumed full capacity, and more and more offices began reopening. On May 13, the CDC officially declared that those who are vaccinated no longer need to wear masks (with a few exceptions). Shortly after on June 15, California, one of the most steadfast states regarding COVID restrictions, officially reopened for business at full capacity.

Unfortunately, August painted a different picture. The Delta variant became the dominant strain of COVID within the United States, with statistics showing that the majority of new COVID infections, hospitalizations and deaths are from the unvaccinated. The CDC updated mask guidelines yet again, recommending those fully vaccinated still wear masks in public indoor settings in areas of substantial or high transmission.

As businesses make the choice to reopen amid these latest developments, the responsibility to offer employees both a safe and fair place to work remains paramount, and leads to the inevitable question—what are the legalities surrounding businesses requiring vaccinations in order to return to work? In August we saw several corporations begin to require vaccinations, including Google, Facebook, Morgan Stanley and many others. Then the FDA fully approved the Pfizer-BioNTech vaccine, which could lead to even more businesses and institutions requiring vaccinations. Case in point: within hours of the FDA approval, New York City announced that all Department of Education employees must have received at least one dose of a coronavirus vaccine by Sept. 27.

Undoubtedly, the best way to understand the laws surrounding vaccination requirements is to confer with your legal counsel, but also arm yourself with the knowledge of what is allowed based on guidance from the Equal Employment Opportunity Commission (EEOC).

On May 28, 2021, the EEOC issued important COVID-19 updates on federal equal employment opportunity (EEO) laws, to assist businesses that were, and are, actively updating safety policies to comply with federal and state guidance. This update included several key points, offering businesses directives on how to maintain a compliant workplace:

• Employers may mandate that employees be vaccinated for COVID-19. “Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the [Americans with Disabilities Act] ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.” However, note that other laws that do not fall under the EEOC’s jurisdiction may place additional restrictions on employers, which is why it is imperative to confirm with legal counsel. It is also important to note, as the EEOC references, that because “some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement.”
• Employers can offer incentives to employees, to confidentiality obtain employees’ vaccine information. Businesses are allowed to offer incentives to employees who voluntarily confirm vaccination documentation. Additionally, those employers that are administering vaccines to staff are allowed to offer incentives for vaccination; however, employers must ensure that the incentives are not coercive.
• Employers can promote the benefits of vaccination. “Employers may provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination.” Basically, employers who require vaccinations are allowed to tout the benefits of the vaccine within their workplace, to help educate and encourage staff to participate.

This helpful update from the EEOC allows businesses to feel confident in their decisions on whether or not to require vaccinations, knowing they are adhering to the laws dictated by the EEOC. In addition, the EEOC developed a resource for job applicants and employees, detailing the federal laws that protect employees from discrimination as a result of the pandemic, to ensure a workplace free of discrimination. It is vital for employers to understand these laws just as much as those above:

• Harassment. Unfortunately, the pandemic has increased certain forms of harassment, as reported by Bloomberg Law. Thankfully, antidiscrimination laws are in place to protect employees from harassment based on national origin, race, color, religion, age, sex, genetic information, or disability. It is the employer’s responsibility to investigate any allegations of harassment within the workplace, including those triggered by COVID-19.
• High Risk. If you are reopening your office and requiring employees to return to work, it is required that you respond and take action when dealing with any employee who may have a medical condition that makes him/her considered high risk, including mental health conditions. It is your obligation to provide a “reasonable accommodation” to those employees, including continuing to work from home, assuming the medical disability falls under the ADA.
• Employees Must Be Allowed to Work. Employers are not allowed to stop an employee from working during the pandemic, due to conditions such as older age, pregnancy or disability. However, it is legal to keep an employee home if they have COVID-19, or if the employee has a disability that puts him/her in a position of vulnerability and significant risk.
• Modifications to COVID-19 Safety Requirements Are Allowed. If any employee’s medical condition, or religious belief, practice or observance, requires an alternate accommodation, it is an employer’s responsibility to provide that reasonable accommodation. For example, if an employee does not get vaccinated for religious reasons, the employer may provide an exception and ask the employee to wear a mask, stay socially distant and/or work from home.

As we continue to navigate through the pandemic, it is crucial for employers to create a workplace that is both safe and free of discrimination, and communicate COVID-19 policies to employees clearly and regularly. Understanding both employer and employee rights under the guidance of the EEOC, as well as consulting with legal counsel, will allow employers to more safely reopen the workplace.

Author Information

Tim Dowd, MBA, is the CEO of Accurate Background.