BEST PRACTICES/COVID VACCINATIONS
DO EMPLOYERS HAVE THE AUTHORITY
TO REQUIRE VACCINATIONS?
Recent announcements regarding the availability of vaccines
for the COVID-19 virus have been both exciting and concerning
for some employers and employees.
Employers need to consider how they will address questions
and concerns with respect to the vaccination and its effects on
One question is whether employers may require employees or
new hires to be vaccinated. In March, the Equal Employment Opportunity
Commission confirmed that taking employee temperatures
and asking screening questions are permitted. These types
of safety protocols are considered medical examinations which,
under the Americans with Disabilities Act ADA are only permitted
when job-related and consistent with business necessity.
The EEOC’s position is that the pandemic met the direct threat
requirement. Similarly, employers can require vaccinations. The
EEOC recently issued new guidance that employers may administer
the vaccine or request confirmation of receipt of the vaccine
and that neither is a medical examination.
Although the vaccination is not considered a medical examination,
prescreening questions required for vaccination may be if
they elicit information regarding a disability. Therefore, such inquiries
must be job-related and consistent with business necessity.
The EEOC says that to meet that standard, an employer should
“have a reasonable belief, based on objective evidence, that an
employee who does not answer the pre-vaccination screening
questions, and, therefore, does not receive a vaccination, will
pose a direct threat to the health or safety of themselves or others”
in the workplace.
Employers must conduct an individualized assessment to
determine whether a direct threat exists as follows:
1. The duration of the risk
2. The nature and severity of potential harm
3. The likelihood that the potential harm will occur
4. The imminence of potential harm.
Additionally, if the employer is going to administer the vaccine
in the workplace, all prescreening questions must be confidential.
These questions are also subject to other restrictions, such as
limitations on asking about a person’s family under the Genetic
Information Non-Discrimination Act.
Further, if a safety-based qualification standard, such as vaccination,
screens out or tends to screen out individuals with a
disability, then the employer must show that the risk of harm to
the health or safety of others cannot be eliminated or reduced by
reasonable accommodation. Likewise, employers may encounter
those who cannot be vaccinated due to religious beliefs or practices.
In such cases, an employer must also provide a reasonable
accommodation for that religious belief, practice or observance
unless it poses an undue hardship.
Thus, while a business may require vaccination, this does
not mean that it can automatically terminate an employee who
cannot be vaccinated due to disability or religion. The employer
cannot exclude the employee from the workplace or terminate
the employee unless there is no way to reasonably accommodate
or otherwise reduce the risk so that the unvaccinated employee
does not pose a direct threat. Only if the direct threat cannot be
reduced to an acceptable level can the employer exclude the
employee from entering the workplace.
Nichole Mooney is a shareholder and
employment law attorney in Dean
Mead’s litigation department. She
represents individuals and businesses
of all sizes in business litigation and
employment related issues. Her
representation includes drafting
employment and severance contracts,
drafting handbooks and policies, and
counseling and representing employers in
litigation regarding all types of employee
actions, rights and obligations. She also
addresses claims regarding restrictive
covenants including noncompete
agreements, trade secrets litigation and
protection of confidential information.
She may be reached at nmooney@
deanmead.com or 407.428.5110.
THE EEOC’S POSITION IS THAT THE
PANDEMIC MET THE DIRECT THREAT
REQUIREMENT. SIMILARLY, EMPLOYERS
CAN REQUIRE VACCINATIONS. THE EEOC
RECENTLY ISSUED NEW GUIDANCE
THAT EMPLOYERS MAY ADMINISTER THE
VACCINE OR REQUEST CONFIRMATION
OF RECEIPT OF THE VACCINE AND THAT
NEITHER IS A MEDICAL EXAMINATION.
Therefore, considering whether to require vaccination is a complex
issue that comes with risks. Consider whether the employer
might promote rather than require vaccination. Incentives such
as gift cards, lunches and/or providing time to get the vaccine are
potential ways to promote vaccination. As it becomes more available,
it might be offered in the workplace to make vaccination
more efficient and more accessible.
As more information pertaining to the vaccines comes available,
employers will have additional information to rely on in
making their determinations. This must be done advisedly and
with an eye toward long-term effect.