January 1, 2021

Yes, An Employer Can Require Vaccinations

by Bill Nolan, Esq., Barnes & Thornburg LLP

The biggest employment law headline of December 2020 was the U.S. Equal Employment Opportunity (EEOC) officially saying what seemed clear already – there is no legal reason for an employer not to require employees to get vaccinated for COVID and prove that they have done so, provided that the employer fulfills its obligation to reasonably accommodate disabilities and religious beliefs.

We’re not there yet; it seems pointless to mandate the vaccination before it is more widely available and, while the associated risks appear to be low, been given at least an initial chance to fail. Further, employers might choose not to require the vaccine, but rather instead to strongly encourage it, incent it, and/or limit the ability of employees who do not get the vaccine to fully re-integrate into the in-person work force.

Unionized employers will need to follow their collective bargaining agreements as applicable, and may have an obligation to bargain over implementing a vaccination policy. State and local governments may put their own spins, likely minor, on the issue.

Otherwise, employers are currently free to make the decision they determine is best for their businesses. The disability or religious accommodation obligations are real, but they are not unlimited. Employers have the right to obtain information supporting accommodation requests and, working with the employee, make reasonable judgments in response. Accommodation is the ultimate fact-specific exercise and requires employment counsel.

There is no obligation to accommodate political beliefs or fear of the vaccination. Further, contrary to many employees’ beliefs, HIPAA has no application to employers. (And it is HIPAA, not HIPPA.)

Certainly employers should proceed thoughtfully into this important and potentially sensitive area, but they hold most of the cards.