COVID-19 Vaccines are Here: Can you require employees to be vaccinated?

With the rollout of the COVID-19 vaccine, remodeling contractors are asking if they can require employees to get vaccinated against COVID-19? Typical with most answers from attorneys, the answer depends on your specific situation. But, in general, if vaccinating your employees is consistent with your business needs, you can require vaccination.  Below we explain the most recent EEOC guidance, how this applies to your business, and what to do if an employee refuses to be vaccinated. 
 
EEOC Guidance
The EEOC has revised its guidelines on vaccinations.  The EEOC has made clear that vaccinations are not medical examinations and asking employees whether they have been vaccinated is not a disability-related inquiry.  This is important because the ADA prohibits an employer from making disability-related inquiries and limits the circumstances under which an employer may require a medical examination.  The EEOC has, however, emphasized that pre-screening questions asked by an employer may implicate the ADA’s provisions on disability related inquiries.  So, if employers are asking pre-screening questions, the employer must be able to show that the questions are job-related and consistent with busines necessity. 

Requiring a Vaccination
If you are considering requiring your employees to be vaccinated.  Here are some questions to think about:

• Is vaccination consistent with your business needs? 
  • If your clients are demanding that only vaccinated workers can enter the project area, you would have a business need for vaccination.
  • If you your employees are required to work side-by-side and cannot effectively socially distance, you would have a business need for vaccination.
• Do employees have a legitimate objection to being vaccinated? 
  • If your employee’s religious beliefs prevent him/her from taking any vaccine, you cannot force him/her to be vaccinated. 
  • If your employee suffers from a medical condition that would be impacted by the vaccine, you cannot require them to be vaccinated. 

Employee Refusal to be Vaccinated
If an employee refuses to be vaccinated, you should consider whether there are any reasonable accommodations.  If the employee works on a computer, can he/she work from home?  Can the employee be removed from contract with other employees, such as by assigning him to outside work?  If there are no reasonable accommodations, the EEOC guidance makes clear that an employer may “exclude” the employee from work.  Contractors should carefully document an employee’s refusal to take the vaccine and the accommodations considered before excluding the employee from the workplace.  This documentation will be critical to any defense should the employee file a claim against your company. 

Craig Martin is a construction attorney with Lamson Dugan & Murray, LLP law firm in Omaha, Nebraska and a member of the Omaha NARI Chapter.  He is also the primary author of the Construction Contractor Advisor Blog: https://www.ldmlaw.com/construction-contractor-advisor/ 

  If you have any questions, Craig’s e-mail is cmartin@ldmlaw.com.   

| 12/23/2020 10:22:39 AM | 0 comments