Specific to this flu season and the ongoing pandemic, employers’ vaccination policies will attract a lot of attention. As employers review their policies and ask themselves whether they can enforce a mandatory vaccination policy, there are several points to consider:
Remember the distinction between mandatory vaccinations and employee screenings (i.e., temperature checks, COVID-19 testing or symptom screenings).
Decisions about mandatory vaccinations need to be based on objective information. Considerations include the medical condition’s impact on the employees’ ability to perform essential job tasks or if it will pose a significant risk of harm to the workplace health or safety. The Americans with Disabilities Act (ADA) protects workers from discrimination based on disability, as well as their private medical information. It also limits employers’ rights to conduct medical examinations of employees, all of which need to be taken into account when considering a mandated vaccination policy.
How do you handle required flu shots?
In addition to employee objections, religious beliefs and collective bargaining agreements that may limit vaccination, the EEOC might also provide protections to workers based on an ADA-covered disability. All these factors demand careful consideration and, in some cases, conversations with employees. If you require a vaccination, ensure that employees who opt out don’t receive negative consequences and that medical information is kept private, per HIPAA rules.
Once it’s available, can you require the COVID-19 vaccine for your employees?
We believe that until the EEOC provides specific employer guidance about a COVID-19 vaccine, its approach to the flu shot is a good guide: Employers are advised by the EEOC to encourage flu vaccines versus requiring them, although the latter isn’t prohibited (depending on your industry). Based on its flu vaccine guidance, some employers may require a COVID-19 vaccination if its requirement is job-related.
Your policies and procedures should educate employees about your policy and that they have the right to seek an exemption or accommodation on the basis of disability or religious belief. State and local laws must also be considered, as well as privacy rules for medical information. Remember, medical records should be kept separately from the general HR files.
Whatever is right for your company, make sure your policies are clear and you educate your employees about them as well as their rights. We will continue to keep an eye out for more guidance, especially as a vaccine becomes available.
EEOC.gov has lots of Q&A for employment-related questions concerning CV-19. Go to https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws for the most current information.