As COVID-19 vaccines become more available and companies return to the office, employers may want to protect their workforce by mandating vaccinations. However, it is essential that they keep in mind certain risks and how to mitigate them, including the legal limits of what they can ask of employees.
When approaching mandatory vaccinations for workers, the legal rules are reasonably established. Employers can mandate vaccinations as long as they have processes to deal withexceptions. The key exceptions concern medical disabilities covered by the Americans with Disabilities Act (ADA), and bona fide religious objections covered by Title VII of the Civil Rights Act of 1964. Because a vaccination is not a medical examination, it does not inherently trigger certain aspects of the ADA. But beware of violating ADA obligations in the course of asking pre-screening questions or securing proof of vaccinations. Unvaccinated employees—particularly those who refuse or are unable to take a vaccine for medical or religious reasons—may be excluded from the workplace if they pose adirect threat, subject to ADA and Title VII obligations to pursue a reasonable accommodation. The ADA accommodation standard is somewhat more favorable to the employee than the Title VII standard. Determining whether an unvaccinated employee poses a direct threat requires a fact-specific determination, considering the duration of risk, the nature and severity of potential harm, and the likelihood and imminence of potential harm.
Excluding an employee from a workplace because they pose a direct threat does not automatically mean termination is justified. The employer first needs to determine whether thereis a feasible alternative arrangement that would not impose undue hardship, such as remote work. There remains a general duty under the federal Occupational Safety and Health Act (OSHA) to provide a workplace free fromserious recognized hazards, and COVID-19 exposure will typically qualify. Of course, organizations that expose the general public to COVID-19 risk being sued.
If a company imposes a vaccination mandate, it must consistently administer exception processes regarding reasonable medical accommodations and religious objections. It will need to understand what constitutes business necessity, and must be able to identify reasonable accommodations on a fact-specific, individualized basis. The company will need to decide whether to assume the risks and obligations arising from self-administering vaccinations, or instead depend on collecting evidence of third-party administration. Lastly, it will need to minimize the prevalence of medical inquiries—including medical details unexpectedly proffered by the employee—and preserve the confidentiality of any protectedinformation that may thereby be received.
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