While remote work in some form isn’t going anywhere, some companies are considering having at least part of their team return to an in-person work environment. Many of those organizations are wondering if they can require employees to get the COVID vaccine before returning to the office.
In this POPS! episode, Zenefits HR advisor Lora Patterson discusses the legal answer: yes. But, she also provides context on a few exceptions that employers need to be aware of, along with additional resources you can use to navigate the decision for your business.
POPS Star Bio
Lora Patterson gets small business. In fact, she grew up helping out at her family’s two small businesses: cleaning cars at their auto dealership and working on the farm, which her parents saw as a good source of exercise and stress relief. Today, her role at Zenefits is also about helping small businesses strike a balance between building a foundation for People Operations and ensure regulatory compliance to fielding an array of questions about emerging—and often urgent—issues. When she’s not at work, Lora is a bibliophile with a gorgeous color-coded wall of books to prove it. She’s also an ardent traveler.
After you listen:
Lora: Can our company require employees to get the COVID-19 vaccine.
Didi: Welcome to Pop’s the show that shows you how to shift from human resources, paperwork to people, operations for the new world of work Havel by answering one question at a time.
Today to help us answer your question. Here’s Lora Patterson, HR advisor at Zenefits.
Lora: So the equal employment opportunity commission also known as the EOC allows businesses to require vaccines like a flu vaccine as a condition of employment. However, there are two exceptions that as an employer you’ll want to be aware of the first allows workers with a legitimate medical reason to opt-out.
This could be an allergy of the vaccine or its ingredients, or because of an ongoing disability. So when it comes to disabilities, we’re going to want to factor in the Americans with disabilities act is also known as the ADA. So the ADA allows employers to have a qualification standard. That includes a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.
So if an employer requires this vaccine, but has an employee who refuses to take it because of a disability. If the employer is going to want to conduct an individualized assessment of four factors to determine if a direct threat exists, here are the four factors. So the duration of the risk, nature, and severity of the potential harm, the likelihood that the potential harm will occur, and the eminence of the potential harm.
If an employer uses these factors and determines that allowing that worker into the office who has not been vaccinated. We’ll pose a direct threat to the worksite, then they need to consider if there is a reasonable accommodation that could eliminate or reduce this risk. One accommodation may be allowing that employee to telework.
Please note that as you’re considering these accommodations, the EOC did not expressly approve employers considering terminating an employee who refuses the vaccine. If for any reason, an employer believes they cannot accommodate these employees. Then I would advise that an employer review additional laws in their area and even consult their legal counsel before looking into possible termination.
Now the second exemption under the EOC guidelines is for religious beliefs that don’t allow vaccination. So under title seven of the civil rights act, these employees may also be exempt and business owners will want to work with employees who have a religious objection to the vaccine to see if they can accommodate this exception.
So the employer should seek a reasonable accommodation unless it poses an undue hardship. And courts have had typically defined undue hardship under title seven as having more than a demon in his cost or burden on the employer. The EOC has gone on to say that if there’s no reasonable accommodation possible, like potentially having them work from home, that it would be lawful for an employer to exclude the employee from the workplace.
Now, similar to a disability, this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or any federal state or local authorities. I would also recommend seeking legal counsel before pursuing a termination. So in summary, the EOC does allow employers to create their own policies around vaccines.
However, there are exemptions the one to be aware of around medical and religious beliefs. Employers will also want to review state and local guidelines and laws to ensure they allow mandatory vaccines. More information around the EOC guidelines. I would recommend reviewing their most recent article that came out last month. And it’s titled what you should know about COVID-19 and the ADA, the rehabilitation act, and other EEO laws.
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