The question, “can I require my employees to be vaccinated for COVID,” does not have a yes or no answer. Like most things in employment law the answer is, it depends. The EEOC has released new guidance on the issue, and what is clear, is that most, but not all, of your employees, can be required to get a COVID Vaccine.
There are two types of employees you cannot require to get a COVID Vaccine: those with sincerely held religious beliefs against vaccination; and those with a preexisting condition that makes getting the vaccine dangerous.
However, there are exceptions allowing an employer to work around employees who object to the COVID Vaccine on these grounds, which may apply to your business. To be sure you fit one of these work arounds, you need to consult an employment attorney, because getting it wrong can get you sued.
First, religious exceptions. An employee who has a bonified religious belief against vaccination, you cannot force to be vaccinated as a condition of employment, in general.
What is a bonified religious belief? A bonified religious belief, is defined so broadly by the law, that assume anyone with a religious belief, no matter what in, has a bonified religious belief. A religious belief can be in something you have never heard of, or that you think is made up, the definition goes very far beyond Judaism, Christianity, Islam, etc.
Can you question if someone’s objection is really based on a bonified religious belief? Yes, but requesting information on the religious objection can be risky; and refusing to accept the objection can be even more risky. It is best that you assume, absent an extreme circumstance, that a religious objection is valid.
However, there is a way around a religious exception, it is just risky as an employer, and you should consult an employment attorney before taking action.
Your obligation to a religious objector is to offer a reasonable accommodation. What is a reasonable accommodation? It is something that does not cause an undue burden on the employer, such that it would meaningfully interfere with the employer’s business, or the accommodation would be an undue financial burden to the business. So, what is an undue burden, it is a situational determination, best made by an employment attorney.
It is your obligation, as an employer, to first attempt to offer a reasonable accommodation, such as allowing the employee to work remotely, wear a mask at all times, or be distanced from other workers. If there is a reasonable way to keep the unvaccinated worker, working, you must try to do it. You cannot immediately terminate an employee based on their religious objection; you must try to make an accommodation for the objector.
If you have a religious objector, and you cannot allow them to work offsite, or offer another reasonable alternative, call me so we can discuss if you have an undue burden situation.
Second, for an employee with a disability, or pre-existing condition, which prevents them from getting the COVID Vaccine, the employer must attempt to make a reasonable accommodation in order not to terminate the employee. The employer, again, can get around this if doing so is an undue burden, and the employer may ask for medical documentation showing that there is a risk to the employee in getting the COVID Vaccine. However, again, if you cannot make a reasonable accommodation because same is an undue burden, you should call me immediately so that we can discuss whether you have an undue burden, or a lawsuit waiting.
