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Can Employers Require COVID-19 Vaccinations?

January 12, 2021

By: Morey Raiskin & Rachel D. Gebaide

Shortly after the CDC granted emergency use authorization of COVID-19 vaccines, the EEOC issued new guidance outlining how employers could lawfully and mandatorily require employees to get vaccinated before returning to a worksite or bar unvaccinated employees from the worksite.

Essentially, the EEOC’s roadmap detailed how, under Title VII and the Americans with Disabilities Act (ADA), employers could enact policies requiring vaccinations when an employee with a deeply held religious belief or an underlying disability could elect not to receive a vaccine and require that an employer accommodate them. Such employees must receive reasonable accommodations, including potential exemption from returning to the worksite rather than termination of employment.

As written by the EEOC, “If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under EEO laws or other federal, state and local authorities.”

At any time that the ADA is involved, employers must engage in an individualized, interactive process with the employee to determine if the employee poses a direct threat to the workplace and the health and safety of others because they are not vaccinated. When an employee objects to the vaccination on religious grounds, employers should similarly explore accommodating the employee’s request provided that doing so poses no “undue hardship.” According to the EEOC and many courts, the accommodation must not require more than a “de minimis” cost to the employer.

The EEOC also explained in its guidance that requiring vaccination will not be deemed a medical examination. However, employers electing to administer or provide vaccinations at the worksite must take steps to avoid asking questions or obtaining information that could turn the vaccination process into a medical exam and potentially violate the ADA if the requested information reveals (or could reveal) a disability. To avoid such potential claims, “best practices” recommend that employers require proof of vaccinations rather than administer the vaccination themselves.

Consistent with this conclusion, the Society of Human Resources Managers reported that 61% of U.S. employers will encourage employees to take the vaccine but not require it, while 64% of employees want to get vaccinated. It appears that employers and employees appear to be currently aligned on this important public health issue.

Please contact Morey Raiskin, Rachel D. Gebaide or the Lowndes attorney with whom you regularly interact with any questions you may have while navigating employment matters during the COVID-19 pandemic.

For up-to-date news please visit our Coronavirus (COVID-19) Resource Center.



This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.
Morey

A Florida Supreme Court Certified Circuit Civil Mediator, Morey Raiskin works in the firm’s Labor & Employment Group.


Over the past 38 years, Morey has represented management of both large and small employers. He has successfully litigated cases in state and federal courts and represented clients in administrative proceedings involving the EEOC, DOL and FCHR. Morey also serves as an advisor to his clients, counseling them on virtually any workplace issue they may confront.

Morey develops non-compete and employment agreements, personnel policies, employment application forms, employee handbooks, and counsels clients on wage and hour, discrimination, WARN Act planning and union avoidance strategies. He litigates these same issues in state and federal courts or in administrative proceedings before the EEOC, U.S. Department of Labor or the Florida Commission on Human Relations.

Morey began practicing law in Las Vegas, Nevada, before moving to Orlando in 1984. In 1986, he accepted an in-house opportunity with a diversified publisher, Harcourt Brace Jovanovich, eventually becoming Lead Labor and Employment Counsel and Administrative Vice President of its wholly-owned subsidiary, Sea World. In 1990, Morey returned to private practice and has served in a myriad of roles, including as a shareholder and chair of the Labor and Employment Law Group at Lowndes from 1990—2012.


Rachel

Rachel D. Gebaide is a member of the firm’s Executive Committee and chair of the Labor and Employment Law Group. She is an experienced employment litigator and adviser, counseling companies in the management of their human resources issues.


Rachel regularly represents employers in federal and state courts and before administrative agencies in defending against claims involving allegations of employment discrimination and violations of the Fair Labor Standards Act (FLSA), the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), and other employment laws. She also defends discrimination claims arising under the Fair Housing Act.  

In addition to her litigation practice, Rachel drafts and reviews employee handbooks, employment agreements, non-competition agreements, separation agreements, and other personnel documents. She regularly advises clients regarding workplace issues and compliance with the FMLA, FLSA, WARN Act, the Affordable Care Act, and other employment laws. Rachel also has extensive experience in conducting independent investigations. 

A frequent speaker, Rachel often writes articles on developing issues in labor and employment law for client-focused publications, legal industry news outlets, and the firm’s employment law blog

Rachel is a member of the Labor and Employment Law Sections of the American Bar Association and the Federal Bar Association. She is also a member of the Orange County Bar Association, having served as Chair of the Labor and Employment Law Committee. Rachel is active in the Litigation and Employment Law Group of Meritas, a global alliance of independent law firms. 

She also serves as Executive Vice President of Congregation Ohev Shalom and Vice President, Legal of TOP Jewish Foundation. 

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