The CDC has issued guidance for employers considering vaccination options for their workforce. The guidance urges employers to begin assessing onsite and offsite vaccination options, building employee confidence in the vaccine, and opening communication with employees.
Current EEOC guidelines state that employers can make the COVID-19 vaccine mandatory of their employees. If the employer makes the vaccine mandatory for employees, and offers the vaccine either through the employer or through a contracted third party, the employer must be aware that vaccine pre-screening questions may implicate the Americans with Disability Act (ADA). Employers must show that the pre-screening questions are “job-related and consistent with business necessity.” If an employee subsequently refuses to answer the pre-screening questions, the employer can exclude the employee from the workplace if the employer demonstrates a “reasonable belief, based on objective evidence, that an employee that does not answer the questions and does not receive the vaccine will pose a direct threat to the health or safety of others.”
If the employer makes the vaccine mandatory for employees but doesn’t offer the vaccine and instead just requires proof of the vaccine, the employer must nonetheless exercise care and avoid making subsequent inquiries regarding religion, or that implicate the ADA. A best practice is for the employer to warn employees to avoid providing unnecessary information as part of their vaccine proof.
Some employees may state they are unable to obtain the vaccine due to a religious or disability objection. To ensure nondiscrimination, and maintain compliance with the ADA and with Title VII of the Civil Rights Act, employers who mandate their employees obtain the vaccine must make reasonable accommodations for these employees. The process to provide reasonable accommodations is an interactive process between the employer and employee.
Employers should ordinarily assume that a request for religious accommodation is based on a sincerely held religious belief, but an employer can request additional information if there is an objective basis for questioning the nature or sincerity of the belief. As to disability objections, an employer can have “qualification standard” requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace. If no reasonable accommodation is possible, the employer can exclude the employee from the workplace, but the employer cannot automatically terminate the employee.
This guidance notwithstanding, employers must be aware that several state legislatures are considering bills that would restrict or otherwise regulate vaccine mandates.
The information contained in this article is provided as general guidance and may be affected by changes in law or regulation. This article is not intended to replace or substitute for accounting or other professional advice. Please consult a CBIZ professional. This information is provided as-is with no warranties of any kind. CBIZ shall not be liable for any damages whatsoever in connection with its use and assumes no obligation to inform the reader of any changes in laws or other factors that could affect the information contained herein.