Our nation’s deaths related to COVID-19 are staggering. As a country, we are still clearly battling the pandemic while figuring out how to get work done. The emergence of more vaccines has been a welcome potential reprieve for many employers and employees – and the Equal Employment Opportunity Commission (EEOC) has stated that employers can mandate vaccinations.

That being said, it is important to note that this is not an absolute rule. First, the EEOC has clarified that the vaccine must be widely “available.” Second, the EEOC has stated that mandatory vaccines apply to organizations where: “employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.” With respect to the first criterion, the vaccine is becoming more available (although there has been recent delays due to extreme weather across the country). With respect to the “direct threat” standard, the EEOC has opined that it is a “high standard” that may apply to many worksites given how easily the virus is spread.

Nonetheless, is it is important to note that it is legal for employees to refuse vaccination due to an existing disability or religious belief. A failure to account for these refusals can lead to legal exposure for employers. As more vaccines become available, employers should consider the following tips in anticipating (and addressing) an employee refusing to receive a vaccine:

1. Establish a written policy. Creating a legally-compliant vaccine policy and distributing it to the workforce will create clarity and organization. The document can address payment for the vaccine, time off, the process for obtaining a vaccine, along with refusals (among other things). Further, in the event of a dispute relating to vaccines, it serves as a helpful reference point.
2. Don’t ignore employee feedback. As soon as an employee refuses a vaccine on the basis of their religion or disability, an employer must “engage in the interactive process.” This means speaking with the employee and understanding the basis for their refusal, providing them with feedback. Engaging in the interactive process can be a legally-sensitive area (where counsel can be helpful); however, at the minimum, employers should not ignore an employee’s refusal on these grounds.
3. Be flexible and do not discipline immediately. We are in a national crisis. If there is a chance that an employee may have a legitimate objection to becoming vaccinated, explore it. The “at will” nature of an employment relationship does not shield the employer from potential claims of discrimination. As such, engaging with an objection to vaccination before disciplining is extremely important. It is possible to bar an employee who refuses vaccination from the workplace, however, it should not be the “first choice.”

Feel free to reach out to me to discuss COVID-19 vaccination in your workplace.