Yes, you, as an employer, can require your staff to get the COVID-19 vaccination, though there are some exceptions, according to both legal and government sources.

 

 

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“Employers may impose mandatory vaccination programs for their employees so long as they consider religious accommodation requests under Title VII of the Civil Rights Act of 1964 and medical accommodation requests under the Americans with Disabilities Act (ADA),” according to an article on the topic in The National Law Review (NLR). (See bit.ly/3hVqkc5 .) Before mandating any vaccination requirements in your practice, sources say to seek legal counsel to ensure you are following all appropriate federal, state and local laws.

The article goes on to say that employers should also be aware of any local or state laws and requirements. “Legal” columnist Katie Gilbert-Spear, J.D., M.P.H., agrees.

“Before dictating/mandating an office-wide policy, I would caution readers to make sure they understand their state law. For example, Oregon allows philosophical exemptions to vaccines.”

In California, disability is defined as an impairment that makes performance of a major life activity difficult, reports NLR. New York’s definition is “a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions that prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or a record of same,” according to the 133-year-old publication.

If your practice implements a mandated program, how should you respond to employees who refuse the vaccination, due to disability or religious practice?

DISABILITY

If you can show that the employee would cause 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,” as per the ADA, you can prohibit the employee from entering your practice, but you cannot automatically terminate the employee, reports the U.S. Equal Employment Opportunity (EEO) Commission in “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

Instead, the Commission says, you need to determine whether the employee has any other rights under EEO, federal, state or local laws. As an example, the employee could qualify for accommodations that do not cause an undue hardship (significant difficulty or expense), such as working remotely. (You can view the Job Accommodation Network website as a resource at askjan.org/topics/COVID-19.cfm .) If an accommodation isn’t possible, the employee may be able to take leave via the Families First Coronavirus Response Act, under the Family Medical Leave Act, or under your policies, according to the EEO.

RELIGIOUS PRACTICE

You have to provide a reasonable accommodation for the religious belief, practice or observance, unless doing so would cause undue hardship (more than a minor cost or burden on the employer), as per Title VII of the Civil Rights Act, reports the EEO. Examples of a religious accommodation could be a shift change or job reassignment.

Additionally, you are entitled to request additional supporting information regarding the religious reason, the Commission says.

If a reasonable accommodation isn’t possible, you can lawfully prohibit the employee from entering your practice, but you cannot automatically terminate the employee, says the EEO. As is the case with employees who report disability as a reason for refusing vaccination, you must see whether the employee has any other rights under EEO, federal, state or local laws. For additional information on this, visit bit.ly/3nNfp6t .

A FINAL NOTE

The COVID-19 vaccinations do not work immediately, cautions the CDC. “It typically takes a few weeks for the body to build protection against the virus that causes COVID-19 after vaccination,” the government entity says. “That means it’s possible a person could be infected with the virus that causes COVID-19 just before or just after vaccination and still get sick.”

Therefore, masks and distancing should still be practiced. OM