COVID-19 in Employment: Can Businesses Require Employee Vaccinations?
January 6, 2021, Retail Association of Nevada, by Laura Jacobsen, With the recent announcement that the United States has begun distribution and administration of COVID-19 vaccines (the first shipment landed in Nevada on December 14, 2020), businesses across the nation are grappling with whether to require their employees to get vaccinated. Whether to impose such a requirement should take into account if a vaccine is currently available to employees, as well as employment laws and regulations. In Nevada, an employer deciding whether to require employee vaccination must consider the requirements of the Americans With Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII), federal laws which cover all employers with at least 15 employees. Under the ADA, a vaccination is considered a medical exam. For that Laura Jacobsen’s reason, it can be required only if it is job-related and consistent with business necessity.
If an unvaccinated individual is a “direct threat” to the health and safety of others, a vaccine mandate is permissible. While the EEOC, the federal agency charged with enforcing the ADA, has determined that COVID-19 is itself a “direct threat,” the EEOC has not yet updated its guidance
with respect to whether an employer may require employees to vaccinate. In the retail space, it seems a vaccination requirement would meet ADA standards due to the possibility of transmission between employees and customers. Once an employer institutes a vaccination requirement, it must be prepared to address employee accommodation requests. An employer has a duty to reasonably accommodate: (1) disabilities under the ADA, and (2) sincerely held religious beliefs under Title VII.
An employer should therefore engage in the “interactive process”—a conversation about the employee’s precise limitations and requested an accommodation—with any employee who states they cannot undergo vaccination because of religion or a medical issue.
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