As COVID-19 vaccinations are becoming more readily available, the question has emerged regarding whether employers may require employees to receive a vaccine before returning to work.  The short answer is yes, as long as the employer does not run afoul of the Americans with Disabilities Act or impinge an employee’s sincerely held religious beliefs.  According to guidance issued by the U.S. Equal Employment Opportunity Commission on December 16, 2020, an employer may require employees to receive COVID-19 vaccinations administered by the employer either on-site or off-site by a third party with whom the employer contracts to administer the vaccine.  Should an employer choose to administer vaccinations on-site, it must be mindful when asking pre-screening vaccination questions which may implicate provisions of the ADA regarding disability-related inquiries.  That is, pre-screening questions that are likely to elicit information about a disability must be “job-related and consistent with business necessity.”  If the employer chooses to administer vaccinations on a voluntary, rather than mandatory, basis, the employer will not be subject to this requirement because the employee is free to choose not to answer the questions and not receive the vaccine.  In addition, this requirement would not be applicable in those instances in which an employee receives a vaccination from a third party off-site and offers proof of vaccination to the employer which does not include other health information.  Requiring employees to show proof of having received a COVID-19 vaccination is not considered a disability-related inquiry.

If an employer requires its employees to have a COVID-19 vaccination, may it terminate an employee who does not receive a COVID-19 vaccination?  An employer cannot exclude an employee on the basis of disability unless the employer can demonstrate that an unvaccinated employee would pose 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.” (citing 29 C.F.R. 1630.2(r)).  A “direct threat” would include a determination that the unvaccinated employee will expose other employees to the virus.  If the employer determines that an employee who cannot be vaccinated due to a disability poses a direct threat, the employer cannot terminate the employee or take any other action unless it is not possible to provide a reasonable accommodation without undue hardship that would eliminate or reduce the risk so that the unvaccinated employee does not pose a direct threat.  This would be a fact-based inquiry based on job duties and the workplace.  Such inquiry may involve a determination as to whether the employee may be entitled to accommodation such as working remotely.

If an employee is prevented from receiving a COVID-19 vaccination due to a sincerely held religious belief, the employer must provide a reasonable accommodation for the religious belief unless it would pose an undue hardship on the employer.  Note that the definition of religion is broad, and an employer should assume that an employee’s request is based on a sincere belief unless the employer has an objective basis for questioning the sincerity of the particular belief and would be justified in requesting additional supporting information from the employee.

In sum, an employer may require that employees receive COVID-19 vaccinations, and if an employee is unable to receive a vaccine due to a disability or sincerely held religious belief and a reasonable accommodation cannot be made, the employer may exclude the employee from the workplace.  Before terminating any such employee, the employer will need to determine whether the employee may have other rights under other federal, state, and local laws.