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June 2021   Volume 19, Number 6        
 

person refusing vaccination

What if an Employee Refuses to Get Vaccinated?

You can fire employees who refuse to get vaccinated.

Yes, you legally can say “you’re fired” (in most cases) if an employee refuses to get the COVID-19 vaccine.

With vaccinations now readily available, employers are seeing the advantages of having all employees vaccinated. Not only can vaccinations protect employees, but vaccinated employees are less likely to transmit the virus to patients and customers. In industries such as hospitality, employers may also be able to attract more customers if they can advertise that they are a safe environment because their employees have had the shot.

Employers have questioned whether the Americans With Disabilities Act of 1990, which prohibits employers from seeking information about an individual's impairments or health status, makes it illegal to require employees to vaccinate. The U.S. Equal Employment Opportunity Commission (EEOC), the agency which enforces laws against workplace discrimination, has issued guidance on the matter.

The EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” explains that employers may require the vaccination because it is not a medical examination and will not reveal private information. The EEOC cautions that employers must still comply with the Americans with Disabilities Act (ADA); Title VII of the Civil Rights Act of 1964 (Title VII); and other workplace laws.

The EEOC guidance also says that requiring an employee to show proof of vaccination is also permitted because such an inquiry is not disability related. However — and this is where it gets tricky — Section K.3 of the guidance states that questions from the employer, such as asking why the employee did not receive a vaccination or other prescreening questions, "may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’"

Exceptions

There are two exceptions, however, where according to ADA laws some employees are allowed to opt out.

  • Disability Accommodation: When an employee refuses to get vaccinated because of a disability, the ADA requires employers to determine whether the unvaccinated employee poses a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If a reasonable accommodation cannot be made, then the EEOC names four factors to use for evaluating whether a threat exists:
    • Duration of the risk
    • Nature and severity of the potential harm
    • Likelihood that the potential harm will occur
    • Imminence of the potential harm
  • Religious Accommodation: Under Title VII, an employer must accommodate an employee’s sincerely held religious beliefs, practices or observances, unless they could cause an undue hardship on the business. If an employer questions the religious nature or the sincerity of a particular belief, they may request additional information. In these types of situations, employers need to determine if any other rights apply under the EEO laws or other federal, state and local authorities.

Legal Concerns

Not everyone is onboard with the EEOC’s guidance. An employee in New Mexico and educators in California have filed lawsuits asking that “allowing mandates to be vaccinated” be overturned.

Plus, some states have introduced legislation banning private employers from requiring COVID-19 vaccinations.

Congress has taken notice and introduced two House Bills — 214 and 608. Both Bills would prohibit employers from taking adverse actions against current or prospective employees based on their COVID-19 immunization status.

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In this issue:

Pay Gap for Women Widens During Pandemic

Additional 2021 Tax Year Benefits Now Available for Employees with Dependents

What if an Employee Refuses to Get Vaccinated?

Alternatives to the Traditional 401(k)

Have Proof Will Travel

 

 


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