Can Employers Require Employees to Take the COVID-19 Vaccine?
Ten months after COVID-19 became a global pandemic, widespread COVID-19 vaccination is—slowly but surely—becoming a reality. Governor Holcomb recently announced a departure from his initial plan for distribution that focused on certain healthcare workers and first responders. Under his new plan, Indiana has begun distributing the vaccine to the general population while prioritizing the state’s oldest residents. With vaccination potentially just weeks or months away for many, now is the time for employers to develop or refine their policies related to COVID-19 vaccinations.
The pressing question for employers continues to be: “Can we require employees to take the COVID-19 vaccine?”
The answer is: “Generally, yes.”
Although permissible, as discussed below, excluding employees who do not take the vaccine requires employers to establish that the excluded employee poses a direct threat. While there may be situations in which employers could establish a direct threat, it is a high standard, and we encourage you to talk with us before you exclude an employee.
Recent Equal Employment Opportunity Commission (EEOC) guidance, as well as practical considerations, will help employers determine the appropriate policy on vaccination. Employers should also track how the Indiana General Assembly weighs in on the issue.
Equal Employment Opportunity Commission Guidance
On December 16, 2020, the EEOC issued guidance supporting that employers could require COVID-19 vaccinations if their policies comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1965 (Title VII) and other workplace laws. Specifically, as set forth in the guidance:
- Employers may require their employees be vaccinated if they attempt to accommodate employees who, due to disabilities or religious beliefs, decline to take the vaccine.
- If employers determine that an employee who declines vaccination for disability or religious reasons poses a direct threat to workplace health and safety that cannot be reduced or eliminated through reasonable accommodation, the employer can exclude the employee from the workplace.
- Employers must assess four factors in determining whether an individual is a direct threat: (a) the duration of the risk presented by the unvaccinated employee; (b) the nature and severity of the potential harm presented by the unvaccinated employee’s presence in the workplace; (c) the likelihood that harm will occur; and (d) how imminent that harm is to others in the workplace.
- Before terminating individuals who pose a direct threat, employers must assess whether they could provide accommodations—such as remote work.
The EEOC guidance can be found here.
Addressing Employees Who Decline to Vaccinate
In determining whether to require employees to take the vaccine, employers should consider how they will address employees who choose not to vaccinate. Despite medical data showing the effectiveness of the vaccine, many polls indicate that a significant percentage of the public will decline to take the vaccine for a variety of reasons. Considering the personal nature of many of these reasons, employers could choose to strongly encourage their employees to take the vaccination instead of requiring vaccination. As examples of encouraging vaccine use, employers could:
- Cover any costs associated with taking the vaccine;
- Provide incentives, including paid time off, for employees who take the vaccination; and
- Develop education programs regarding vaccinations.
Recommending instead of requiring vaccination could avoid potential legal risk. Further, it could save human resource departments time otherwise spent monitoring and enforcing the requirement to vaccinate.
Status of Proposal to Prohibit Indiana Employers from Requiring Vaccinations
The Indiana General Assembly is currently grappling with these considerations and where to draw the line between public health and personal freedom. A state senator recently introduced Senate Bill 74, which would prohibit employers from requiring employees to take COVID-19 and other vaccinations if doing so conflicts with the employee’s religious beliefs or conscience. While the bill recently had its first committee hearing, at this time there is no indication that it has enough support to become law.
Kightlinger & Gray employment attorneys are here to help. Please contact us to answer any questions you may have regarding COVID-19 and other employment-related issues.
Marcia A. Mahony
Kenneth J. Kleppel