What Employers Need to Know About Requiring Employees to be Vaccinated
With three COVID vaccines now approved, vaccinations are ramping up. A lot of people are tired of working from home, and many employers are starting to think about bringing people back to the office. But what are businesses to do if employees object to being vaccinated?
Subject to some important caveats, employers may require employees to get vaccinated before they are allowed to return to the office. Businesses may want to insist that everyone is vaccinated before coming back, both as a way of ensuring safety for everyone in the workplace and avoiding liability if anyone gets sick. In addition, being able to say that the workforce is fully vaccinated may offer a sense of comfort for clients and customers who might otherwise be apprehensive about visiting or working in person with the company’s employees.
However, requiring vaccines for everyone poses some challenges. First, vaccines are still not widely available. A host of issues has complicated the roll out, and as long as some people remain unable to get an appointment to be vaccinated, most businesses will be hard-pressed to require uniform vaccination, at least for now, simply due to a lack of access.
Further, employers must have a procedure in place to evaluate and respond to requests for accommodations for any employees who wish not to be vaccinated based on health or religious considerations. The Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, respectively, require employers to engage in an interactive dialogue to determine whether they can reasonably accommodate workers who have a disability or a sincerely held religious belief that prevents them from being vaccinated. If there is no available accommodation that would not impose an “undue hardship” on the business, no accommodation need be made.
In addition, certain states and localities may have their own laws governing the required procedures for considering and responding to requests for accommodation. For example, New York City requires a “cooperative” (by contrast to the federal “interactive”) dialogue, culminating in a written final decision being given to the employee. Employers should also be aware that the legal definitions of “disability” and “religious belief” are far more expansive than one might suspect. Allowing remote work may be a reasonable accommodation, if an employee is able to perform the essential functions of their job without being on site.
Some employers may wish to incentivize employees to be vaccinated. The federal government has not yet provided guidance on such employer incentive programs, so for now, businesses are encouraged to offer no more than gifts of nominal value (e.g., water bottles, $10 gift cards, etc.) in order to avoid any claim of coercion or impacts on hourly and overtime rates of pay.
If you have any questions regarding this information, please do not hesitate to contact Valerie K. Ferrier at vferrier@kanekessler.com or 212-519-5107, or Dana M. Susman at dsusman@kanekessler.com or 212-519-5136, in our Litigation / Employment Practice Group.