Can Employers Require Covid-19 Vaccination?

March 31st, 2021 - Aaron A. Brinckerhoff

The Washington Department of Health has announced that all Washingtonians 16 and older will be eligible to receive Covid-19 vaccinations starting April 15, 2021. As remote workers transition back to the office in larger numbers, many employers want to know if they can legally require employees to be vaccinated for Covid-19 before they return. The answer is yes, with some important exceptions.

Federal and state law requires employers to provide a workplace free from serious health hazards. Guidance from the Equal Employment Opportunity Commission (EEOC) states that federal employment laws “do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities.” This has been interpreted to mean that employers may make Covid-19 vaccination a condition of employment if deemed necessary to protect the health and safety of individuals in the workplace.

Current EEOC guidance also explains that employers may ask whether employees have received the vaccine or require proof of vaccination. This is not a “disability-related inquiry” as prohibited by the Americans with Disabilities Act (ADA) because there are many non-disability related reasons an employee may choose not to receive the vaccine. However, employers may not ask why an employee has not been vaccinated, as this question could illicit disability related information, unless the question is “job related and consistent with business necessity.” For that standard to apply, the employee’s failure to be vaccinated must pose a “direct threat” to the safety and wellbeing of other employees with whom they have contact in the performance of their work duties. Any disability-related information must be kept confidential and separate from that employee’s personnel file.[1]

Employers also need to be aware that employees with (1) a qualifying disability under the ADA that prevents them from safely receiving the vaccine, or (2) a sincerely held religious belief, practice, or observance that prohibits receiving the vaccine, must be exempted from a mandatory vaccination policy as an accommodation. If an employer establishes that exempted employees pose a direct threat to health and safety that cannot be accommodated without undue hardship, they can be physically excluded from the workplace. However, the employer cannot fire an employee for these reasons without first exploring other possible accommodations, such as working remotely.

An employer considering a mandatory Covid-19 vaccination policy should establish clear procedures for responding to disability and religious exemption requests. They should also be careful to shield employees asking for accommodation from retaliation. Given the complexity of these issues, many employers are opting to make Covid-19 vaccination “strongly encouraged” rather than mandatory. Either way, employers should consult an experienced employment attorney to ensure they are taking the necessary steps to provide a safe workplace while complying with the law.

Disclaimer: This article and blog are intended to inform the reader of general legal principles applicable to the subject area. They are not intended to provide legal advice regarding specific problems or circumstances. Readers should consult with competent counsel with regard to specific situations.

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