You Can Require Employees to Get Vaccinated for COVID-19—But Should You?

Suzanne Lucas

Founder, Evil HR Lady

The COVID-19 vaccine roll-out is happening throughout the U.S., bringing with it the hope for a return to normalcy and—for many employees—a return to the office.

While many of your workers will likely be lining up to get the vaccine as soon as they’re able to, others might be more hesitant. This raises an important question for organizations: can you require your employees to get vaccinated if they plan to return (or continue going) to work in person? And, perhaps even more importantly, should you?

You Can Require Employees to Be Vaccinated, But There Are Rules to Follow

The Equal Employment Opportunity Commission (EEOC) issued guidelines for employers on requiring the COVID-19 vaccine as a condition of work. In a nutshell, employers can require the vaccines, but they have to be mindful of employee protection under the Americans With Disabilities Act (ADA). The act states that employers can’t discriminate against employees with disabilities or certain medical conditions, and can’t require employees to undergo medical examinations as a condition of their jobs. That is, unless the employer can demonstrate that such testing is necessary to confirm the individual’s ability to perform the essential functions of the position.

What does the vaccine have anything to do with the ADA? It turns out that the vaccine itself isn’t so much the issue as the pre-screening questions vaccine recipients need to answer before getting the shot. This can count as a "medical exam" under the Americans with Disabilities Act, because asking those questions may require the employee to disclose a disability—a violation of the Americans with Disabilities Act.

That doesn’t mean you can’t require a vaccine; you simply have to ask employees to obtain the vaccine from their doctor, a pharmacy or another non-work location. The key is keeping private health information out of the hands of an employer.

But keep in mind: you still need to allow employees to opt-out for medical or religious reasons and make reasonable accommodations for employees that cannot be vaccinated.

Just Because You Can Require Vaccinations Doesn’t Mean You Should

The decision on a vaccination requirement is one your organization will have to make based on several factors, such as the industry you serve. If you’re in healthcare or interact with customers across vulnerable populations, you have a business necessity to get people vaccinated. But even so, not all hospitals are requiring their employees to be vaccinated, opting instead to recommend the shot to their employees.

And they have a good reason—there aren't enough vaccines to go around. It makes little sense to battle with recalcitrant or ineligible employees when not everyone can get it anyway.

Meanwhile, if your business doesn’t deal with vulnerable populations, or your business model doesn’t require much in-person contact, you may decide it’s not worth the administrative hassle associated with requiring the vaccine, especially right now. There are still eligibility restrictions, and some people are hesitant about receiving a brand new vaccine.

As of November, the Pew Research Foundation found that almost 40% of Americans said they "probably" or "definitely" would not get the vaccine. As a result, encouraging employees to get it when they’re eligible is a better path to take right now, rather than requiring them to do so.

But remember: the vaccine isn’t a silver bullet. Regardless of your policy, your organization will need to continue to follow the CDC’s guidelines on social distancing, masking, and cleaning.

For more on how to help your organization and your people adapt during the evolving pandemic, check out these COVID-19 resources for HR leaders.

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