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  • Lisa McKellar Poursine

Can Businesses Require that Their Employees Get a COVID Vaccine? And if so, Should They Require it?

As the availability of vaccines in Florida becomes more and more prevalent and as President Biden just announced that many small and medium sized businesses will be eligible for a paid leave tax credit for when their employees take off time from work to be vaccinated, many business are wondering whether they should require that their employees become vaccinated before returning to the office. Private businesses generally have the right to mandate that their employees become vaccinated except where the employee has a sincere religious objection to the vaccine and/or a disability. In connection therewith, the Equal Employment Opportunity Commission (“EEOC”), which enforces workplace discrimination law, including the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), promulgated guidelines in December 2020 for businesses to follow with respect to employee COVID vaccinations. As millions of Americans anticipate the return to office work following several months of working remotely, these regulations are particularly relevant at this time.

One of the topics that the EEOC addressed in its December 2020 Guidance is whether requiring employees to show proof of COVID vaccination would be a disability related inquiry implicating the ADA. The mere act of requesting proof of the vaccination would not pose a problem. In fact, the CDC’s COVID-19 Vaccination Record Card does not provide any medical information about the individual and only provides the date of birth and the type of vaccine received and when the individual received the vaccine. However, inquiries concerning why an employee did not receive a vaccine could result in the employee informing the employer about a disability. Accordingly, the EEOC suggests that employers warn employees not to provide any medical information in response to a request for proof of vaccination.

If an employee has indicated that he or she cannot be vaccinated due to a disability, the employer will then find itself engaging in the interactive process under the ADA and will have to offer a reasonable accommodation to the extent feasible. Specifically, the employer may ask questions about the disability, but only to the extent that they are job-related and consistent with business necessity. Likewise, suppose the employee presents a sincerely held religious objection. Again, the employer will be in a scenario where it will be forced to engage in the interactive process and offer a reasonable accommodation based upon Title VII’s prohibition of workplace religious discrimination. That reasonable accommodation might be something as simple as offering the employee remote work, separating him or her from other employees, or requiring that the employee wear a mask at work.

Whether an employer should mandate that employees show proof of vaccination is questionable. It really depends on the employer’s industry and the level of exposure that employees and their clients will have to COVID. In addition, employers should consider that the vaccines at this point have only received emergency use approval as opposed to having been approved by the Food and Drug Administration (“FDA”). There may also be state legislation in the future prohibiting employers from mandating that their employees receive a vaccination against COVID, or any other illness for that matter. As such, the better approach for most businesses would be to simply encourage vaccination among employees.

If you would like to learn more about best practices for your business to take with respect to the new "normal" following the rampant availability of COVID vaccines in Florida, please call McKellar Poursine, P.L.L.C. at (305) 721-2954.

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