As employees begin to transition back to in-office work after months of remote working due to the COVID-19 pandemic, both employees and their employers may be wondering: can an employer require returning employees to receive the COVID-19 vaccination before returning to the workplace?
Federals laws such as the Americans with Disabilities Act and Title VII of the Civil Rights Act do not prevent an employer from requiring all employees physically entering the workplace to receive the COVID-19 vaccine. However, there are circumstances where an employer might be required to provide reasonable accommodations for an employee who can’t receive the vaccine due to:
- A disability
- Pregnancy or pregnancy-related conditions
- Religious beliefs or practices
Under federal laws, employers also cannot apply a vaccination requirement in a way that discriminates based on race, color, religion, national origin, age, or genetic information. Employers should also be aware of the fact that some demographic groups may face greater barriers to receiving the COVID-19 vaccination than other demographic groups.
When an employee has a legitimate reason for not getting vaccinated against COVID-19, their employer should offer them reasonable accommodations. These kinds of reasonable accommodations include:
- Wearing a face mask when in the workplace
- Working at a social distance from coworkers or others entering the workplace
- Working a modified shift
- Receiving periodic testing for COVID-19
- Offering the opportunity to telework
In situations where these reasonable accommodations cannot be made, reassignment of the unvaccinated employee may also be an option.
Even when employers are aware that certain employees may be unable to receive the COVID-19 vaccination, they are still able to require to require COVID-19 vaccines for all employees returning to the workplace, through there are ADA requirements that must be met. If an employee cannot receive the vaccine, their employer cannot require their compliance with their workplace’s vaccination requirements unless they can prove that the unvaccinated employee poses a direct threat to the health and safety of the employee and others in the workplace. To determine if an employee poses a direct threat, the employer should consider factors such as:
- The duration of the risk
- The nature and severity of the potential harm
- The likelihood that the potential harm will occur
- The imminence of the potential harm
This decision should be made based upon the most current medical knowledge about COVID-19.
If an employer determines that an unvaccinated employee poses a direct threat to themselves or others in the workplace, they may consider reasonable accommodations, like the ones listed above.
To learn more about the federal laws surrounding requiring the COVID-19 vaccine for employees returning to the workplace, employers and employees can see this list of frequently asked questions from the EEOC.