By Jakob Goldfarb, Summer Intern at the Law Office of Wendy Anderson and 2L at University of Washington School of Law

A common question from business owners, as the world transitions to a post-COVID era, is whether or not they can require employees to be vaccinated for COVID-19. While the short answer is that yes, you can require that employees get vaccinated, there are several things for you to consider when deciding whether or not to do so.

Due to the nature of the COVID-19 vaccine, businesses that require their employees to be vaccinated should be aware of the guidelines set by the Occupational Safety and Health Administration (OSHA) and any local standards as well. Being in-tune with these guidelines can prepare you for managing employees’ time off or for what to do when an employee refuses to get the vaccine for one reason or another.

The Equal Employment Opportunity Commission (EEOC) issued guidance stating that employees may be exempt from employer vaccination mandates under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and other workplace laws if they have a disability or religious objection. If you require vaccinations, you may face discrimination claims if you deny reasonable accommodation requests to these employees.

However, if an employee who cannot be vaccinated poses a direct threat to the workplace, you must then consider whether an alternative accommodation can be made, such as allowing the employee to work remotely or take a leave of absence. If accommodations can be made in these cases without undue hardship (defined under Title VII as having more than a de minimis cost or burden on the employer) to your business, you need to do this.

If you require your employees to be vaccinated, then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case and meets one or more of the general recording criteria determined by OSHA. Employers who require COVID-19 vaccines must notify OSHA within 24 hours of an employee’s inpatient hospitalization (or within eight hours of an employee’s death) resulting from an adverse reaction. Adverse reactions may also be required to be recorded if they meet other criteria, such as causing someone to have days away from work or medical treatment beyond first aid.

In order to incentivize more people to get the vaccine, OSHA has begun to relax the recording requirements for adverse reactions to the vaccine. Furthermore, the standards are even more lax when you simply recommend the vaccine and make it available to your employees – this is a viable alternative for many businesses that may be worried about unforeseen consequences of requiring employee COVID-19 vaccinations.

If you are a business owner, part of operating smoothly is ensuring that your employees have a healthy, safe work environment.  Requiring that your employees get the COVID-19 vaccine can confirm that there is one less significant danger to worry about in the workplace.

Studies show that roughly 60% of employees plan to get vaccinated once the vaccine is available to them. However, up to 28% of employees have said they are willing to lose their job if they are required to get the COVID-19 vaccine. Given these statistics, it may make more sense for your business to recommend that employees get vaccinated and make it available for them.  And of course, continuing to require the use of personal protective equipment, health checks, masks, and social distancing at your workplace may also allay some fears of transmission of the virus.

If you are considering requiring that your employees get vaccinated for COVID-19, let’s discuss the concerns you have about your company’s operations and determine what the best route to a healthy work environment is for you.

NOTE: THIS ARTICLE IS FOR GENERAL INFORMATIONAL PURPOSES. IT DOES NOT CONSTITUTE LEGAL ADVICE, NOR DOES IT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. EACH SITUATION IS DIFFERENT. YOU SHOULD CONSULT WITH AN ATTORNEY TO DETERMINE YOUR LEGAL RIGHTS, REMEDIES, AND DUTIES.

By Wendy M. Anderson, Esq.
Law Office of Wendy Anderson, PLLC
480-825-4509
Contact Me Today

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