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To Mandate or Not? Employment Issues Around the COVID-19 Vaccine

Posted by Kathy Harrington-Sullivan | Feb 09, 2021 | 0 Comments

While everyone is anxious for work-life to return to the way we knew it prior to March 2020, is mandating that your workforce receive the COVID-19 vaccine the solution?

Amanda Farahany, managing partner at Barrett & Farahany, and Josh Joel, Of Counsel at Stanton Law, discussed the issues around a vaccination mandate as well as other options for employers and employees in a recent Fulton County Daily Report article (subscription required to view full article).

EEOC OKs mandate 

The issue is not whether employers can mandate vaccination, wrote Farahany and Joel. The Equal Employment Opportunity Commission (EEOC) has already cleared the way for employers to do so, as long as they provide reasonable accommodations for religious objections and disabilities. 

Rather, employers have to decide whether they should require vaccination, taking into account their type of business as well as social responsibility factors, the authors noted. They gave the example of an elder care facility or school, where individuals are in close contact and infections spread easily, compared to a law firm, where employees tend to have more opportunity for social distancing. The authors also questioned whether employers who took advantage of Paycheck Protection Program loans or other COVID-19 government relief programs have a social responsibility to ensure their employees receive the vaccine.

Potential consequences

Farahany and Joel noted that employers who mandate vaccination will have to decide consequences for employees who neither follow the policy nor ask for religious or disability accommodation. One consequence could be to fire the employee. Another option would be to furlough the worker so that he or she can qualify for unemployment benefits.

Under a mandate, it's OK for employers to ask for proof of vaccination. But if an employee refuses to get a vaccine and has not asked for accommodation, employers have to be careful not to probe too far for the reason lest they risk violating EEOC and Americans with Disabilities Act (ADA) regulations.

Accommodations 

As with all other vaccines, employers have to allow for reasonable accommodations for religious objections and disabilities, noted Farahany and Joel. Religious beliefs are to be sincerely held but do not have to be mainstream, the authors reminded. In a disability situation, employers are to engage with the worker to come up with an accommodation that does not pose a direct threat to the workplace or an undue hardship on the business.

Other options 

If employers do not want to mandate vaccination, they can instead strongly encourage employees to get the COVID-19 vaccine or make no statement and simply continue with current safety protocols. 

Farahany and Joel noted the issue of whether to mandate vaccination is only temporary. Once our society reaches herd immunity, the COVID-19 vaccine will hopefully be as widely accepted as other vaccines and no longer a business issue, they concluded.

If your employer has refused your request for a religious or disability accommodation for declining the COVID-19 vaccine, or may have violated EEOC or ADA guidelines in any other way, please do not hesitate to get in touch with the experienced team at Barrett & Farahany.

About the Author

Kathy Harrington-Sullivan

Kathy Harrington Sullivan is a Partner at Barrett & Farahany who helps potential clients understand the law, clarify their rights, and determine which steps they can take to protect themselves and their jobs.

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