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Should You Require That Your Employees Get a COVID-19 Vaccine Before Returning to In-Person Work?

  • U.S. Equal Employment Opportunity Commission guidelines say employers can legally require employees to receive a COVID-19 vaccine to physically return to work
  • Employees can request exemptions, and must be granted reasonable accommodations for safe in-person work
  • Businesses have generally preferred incentivizing vaccines to requiring them

Summary by Dirk Langeveld

As COVID-19 vaccines become more readily available and employers make plans to resume in-person collaborations, the question of whether or not employers should mandate the vaccine is becoming more pressing.

Recent guidance from the U.S. Equal Employment Opportunity Commission confirms that employers can legally require employees to be vaccinated against COVID-19 before they return to a physical workplace. Employers requiring the vaccine must comply with the reasonable accommodation provisions of the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964, along with any other EEO considerations.

The EEOC has issued similar guidance in the past, permitting employers to mandate that workers get flu shots and other vaccines. However, employees can also request an exemption due to reasons such as a disability or religious belief. The employer must provide these unvaccinated workers with reasonable accommodations such as permitting them to work in person while wearing a mask, observing social distancing, and periodically getting tested for COVID-19; allowing them to work remotely; reassigning the employee; or having them work a modified shift.

The EEOC notes that certain individuals or demographic groups may face barriers in accessing the COVID-19 vaccine. It recommends that employers take this issue into consideration when determining whether they will mandate vaccines.

Employers are also permitted to offer incentives to encourage employees to get vaccinated, although these should not be coercive. The commission suggests that “very large” incentives could make employees feel pressured to release medical information, since they must complete pre-vaccination disability-related screening questions before receiving the vaccine.

Employees can require that employees show documentation proving that they’ve received a vaccine, or voluntarily provide it to receive an incentive. However, the employer must keep this information confidential.

The Centers for Disease Control and Prevention says employers may require employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or other health care provider. It says the employer cannot mandate that the employee provide any medical information as part of this proof.

Surveys have generally indicated that businesses are strongly in favor of incentivizing COVID-19 vaccines, but that there is more tepid support for mandating them. Some states have issued laws forbidding businesses from issuing vaccine mandates.

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