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The availability of COVID-19 vaccines has caused employers to ask if they can require employee vaccinations and what to do if employees refuse the shots. Some employers in the workplace have fired workers for refusing the vaccine.
For example, one report in The New York Times stated that a restaurant allegedly fired a waitress who refused the vaccine. The 34-year-old waitress admitted she did not oppose getting vaccinated. She wanted to determine the medicine's effects on fertility first.
Recent Terminations
Another article in The Wall Street Journal stated some companies will not hire job applicants unless they get a COVID-19 vaccination before coming onboard. According to the news piece, people opposed to getting the vaccine feel skeptical, worrying about the safety of the medicine and possible adverse side effects. Some admit having a general distrust of the government and pharmaceutical companies.
As an HR recruiter or staffing company, these reports can leave you wondering about COVID-19 vaccine compliance, and the effect it might have on hiring practices. Employers also are asking if they can require vaccinations and, if so, what they can do if their employees refuse the shots.
Reviewing EEOC Guidelines
To answer questions concerning COVID-19 vaccinations, HR professionals and employers need to refer to guidelines set by the Equal Employment Opportunity Commission (EEOC). While an employer can encourage or even require COVID-19 immunization, the company still needs to make sure its policies follow the Americans with Disabilities Act (ADA) and Title VII of the 1964 Civil Rights Act.
Ensuring Worker Safety – What You Can Do Legally
Two things you can do, as an employer, to ensure your employees’ safety at work are to take their body temperature and refuse them entry when they are sick.
However, you also have to remember that some employees who contract the COVID-19 virus do not have a fever, so you cannot rely on the method as being foolproof.
Both the American Disabilities Act and the Centers for Disease Control (CDC) support company policies that require employees to stay home if they experience COVID-19 symptoms. If you cannot immediately enforce vaccinations, you can mandate compliance if an employee becomes sick.
What You Can Do to Establish a Safer Workplace
According to the EEOC, you can ask any employee physically entering your business if they have received testing or a diagnosis of COVID-19. Symptoms related to COVID-19 include chills, cough, shortness of breath, and fever. You can see the current list of symptoms here on the CDC website.
The EEOC states that workers who have COVID-19 symptoms in offices and factories pose a direct threat to the health of other workers and customers. Therefore, employers can ask these employees to go home to recuperate.
However, you cannot ask employees if they received testing or a diagnosis of COVID-19 if they work at home. Working inside the home does not create a direct health threat.
Objections Based on Religion or Disability
From a legal standpoint, employers may have to excuse employees who object on religious grounds to receiving the vaccine. The same holds true for workers with disabilities. If an employer requires COVID-19 vaccinations, the workers, in these instances, may ask for accommodation, such as working at home or a leave of absence. If an employee who objects to the vaccine is a union member, an employer may have to negotiate with the union before requiring the shots.
Under the ADA, HR departments in companies must assess objections to the vaccine. If a company's policy states that a worker's refusal to get vaccinated can endanger other coworkers, the vaccination requirement can stand.
Does the Employee Who Objects to Vaccination Pose a Direct Health Threat?
The EEOC encourages employers to consider four elements in assessing a direct health threat:
- The type and severity of the threat
- The potential of danger
- The imminence of the threat (or the possibility that it could happen anytime)
- The duration of the threat
If an employee refuses to get vaccinated because of their religious beliefs or because of a disability, the employer might consider a reasonable accommodation, such as a leave of absence or remote work.
Therefore, HR professionals need to consider:
- An employee's role
- If the employee can work at a job where they don't have to get vaccinated
Even with EEOC established guidelines in place, employees with disabilities or sincere religious beliefs, who cannot receive accommodation, can be asked to leave. However, that does not mean the employer will fire them. Businesses still have to consider if the employees have rights under other federal, state, and local statutes.
Enforcing Vaccinations – Why Employers Need to Draft a Company Policy
Employers who make COVID-19 vaccinations a requirement need to draft a policy with their HR department in writing so employees and HR applicants know where they stand. If employees refuse the vaccine, the employer should ask workers why they feel the way they do.
How to Encourage Vaccinations
If employers want to introduce COVID-19 vaccines in the workplace, they need to scrutinize their HR policy. To avoid HR discrimination claims, employers who wish to introduce COVID-19 vaccinations can reward employees by doing the following;
- Make vaccinations easy to get.
- Cover vaccination costs.
- Offer bonuses or perks to vaccinated workers.
- Give paid time off to employees who receive the vaccine and experience any side effects.
Legal experts covering HR practices suggest employers promote vaccination before making it a company's policy. If employees understand that vaccinations will safeguard their workplace, and their managers receive the vaccines first, everyone will feel more positive. Therefore, employers can require employees to get vaccinated. They just need to write a policy that gives employees and applicants a solid and clear understanding of their requirements. These requirements must follow the legal guidelines established by the EEOC, Title VII of the 1964 Civil Rights Act, and ADA.
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