Legal Update: How to Handle COVID-19 Vaccinations

The COVID-19 vaccines are beginning to be administered and you face the possibility that some members of your staff will refuse to get inoculated. The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance on your rights as an employer and what you need to know about the legal issues surrounding the vaccine. Here are answers to key questions you might have about making vaccination mandatory — and what to do when employees decide to pass on receiving their shots.

Yes, according to the EEOC (osmag.net/aD9GRe), which states that requiring your employees to get vaccinated does not violate the Americans With Disabilities Act (ADA) if you can make the case that they are a direct threat to the health and safety of others in the workplace. In other words, if it can be determined that an unvaccinated employee would expose others to the coronavirus, a COVID vaccine can be mandated.

You can ask for proof that your employees have been vaccinated because the COVID vaccinations are not considered medical examinations and not covered under ADA or Genetic Information Nondiscrimination Act (GINA) restrictions. Make sure, however, that you ask employees to not send any other medical information along with the proof of vaccination that you're not entitled to, as possession of health histories could cause future legal issues for your facility.

Yes, employees can decline vaccination on a variety of grounds and for any number of reasons, including personal choice, fear that the immunizations were rushed onto the market, concerns about long-term health effects such as infertility — or perhaps they've already been diagnosed with COVID-19 and want to save doses for individuals who need them.

They can also object to vaccination because of religious beliefs. You generally shouldn't question the validity of claims of a religious objection. You can, however, ask for more information about their beliefs if you legitimately question the sincerity of the objection.

Employees might also not be able to receive a vaccination because of a health disability. At least one federal anti-discrimination law that sometimes limits employers' rights and ability to act on their employees' work statuses because of health issues doesn't apply here, however. The EEOC has said that GINA, which forbids you from making employment decisions based on employees' medical histories, isn't triggered by requiring a COVID-19 vaccine.

You essentially have two choices to make when faced with employees who don't get vaccinated for personal reasons. If you feel an unvaccinated employee poses no serious health risk to patients or coworkers, you can allow them to work while undergoing daily screenings for COVID symptoms, wearing PPE, engaging in proper infection control practices and following social distancing guidelines. If, however, you determine an employee poses a direct threat to others, including patients, that employee can be barred from entering your facility. When access becomes a matter of dispute, utilize the existing regulations that apply to employees who have received COVID-19 diagnoses or are symptomatic.

Not getting vaccinated is ultimately the employee's choice.

In the healthcare context, you have broad latitude because most jobs include direct patient care. In many cases, employees who insist on trying to come to work with COVID symptoms, or without a vaccination, can be terminated. Not getting vaccinated is ultimately the employee's choice — but it can cost them their job. Employees who will not be vaccinated can be rightfully terminated if you feel they directly threaten the health and well-being of your patients.

You can offer accommodations for employees who object to getting vaccinated due to their religion or disability. These accommodations can include allowing them to take a medical leave of absence or offering them a position they could perform from home so patients or coworkers aren't potentially exposed to the virus. These accommodations must be made if they won't create an undue hardship on your facility, which essentially means they'll result in a minimal financial cost or operational burden to you.

Train your managers on how to recognize an accommodation request — and make the accommodation-offering process with your employees an interactive one. Meet with them. Tell them you understand their concerns. Share your concerns and explain why you're making them your offer. As always, document what each party says at any meeting that's held.

Vaccinations received by your staff should be administered by a third party. That avoids triggering ADA issues caused by asking for information about an employee's disabilities or GINA issues caused by asking for information about an employee's medical history. The COVID-19 vaccines are available under special Emergency Use Authorizations (EUAs), which require recipients to receive information about the vaccine in advance. You should have access to these EUAs and provide them to employees who are interested in receiving the vaccination. OSM