By Allison Colgin

This question has been raised repeatedly in recent days as vaccines become more available, and the answer is not always straightforward. There are a myriad of reasons why employers would want to require that all their employees get vaccinated. Employers have obligations under OSHA for workplace safety, and it makes good business sense to get employees back in the workplace. But employers also should be mindful of state and federal discrimination and privacy laws.

Generally, employers may require employees to get vaccinated as a condition of continued employment. Of course, it’s never that simple under federal employment laws or in the current political climate. Around one-third of Americans, when surveyed, say that they probably or definitely will not get the vaccine. Most employers cannot afford to lose a third of their workforce.

Employers must also pay close attention to:

  • Title VII of the Civil Rights Act
  • The Americans with Disabilities Act (ADA)
  • The Occupational Safety and Health Administration (OSHA) guidelines
  • Centers for Disease Control Guidance for Employers regarding COVID-19 Vaccines

Discrimination Issues:

Title VII and the ADA require employers to provide accommodations to employees with sincerely held religious beliefs and employees who have a disability that prevents them from getting vaccinated. Under the ADA, employers must engage in an interactive process with the employee to determine whether a reasonable accommodation exists that doesn’t create an undue burden or direct threat to other employees’ safety (and possibly violate OSHA guidelines).

Accommodation obligations also exist for employees who have a sincere religious belief that prevents them from getting vaccinated.

Incentive Programs:

Some employers have instituted incentives to encourage employees to get vaccinated, such as offering additional sick leave to vaccinated employees. Again, employers must navigate employment discrimination laws when creating incentive programs. If an employer decides to go this route, it should draft clear, written policies so their employees fully understand their program.

If you have any questions regarding vaccine policies or other employment-related questions, please contact Allison Colgin at acolgin@jhattorneys.com.

Disclaimer:  Neither Levy Coleman Brodie, LLC nor any of its partners, associates, staff or agents shall have any liability for any information contained herein, including any errors or incompleteness. The contents of this report are not intended, and should not be considered, as legal advice or opinion