As vaccines become available, workplace vaccination requirements may expand.
The Equal Employment Opportunity Commission (EEOC) has released guidance under federal law that makes it clear that employers may require workers to receive a COVID-19 vaccine – with limited exceptions. This is also true under Oregon law.
Employers may require employees to get a COVID-19 vaccination before returning to a worksite if the absence of a vaccination constitutes a direct threat to other employees in the workplace, considering that the virus is rampant and is easily transmitted to other employees. The Equal Employment Opportunity Commission [EEOC] has noted that employees may be legally entitled to an accommodation based on the Americans with Disability Act [ADA]. Similarly, an employee may also be entitled to an accommodation based on a sincerely held religious belief or practice—but employers do not have to accommodate secular or medical beliefs about vaccines.
The EEOC has released specific guidance about the COVID-19 vaccine (see section K). It has also updated its Pandemic Preparedness for the Workplace guide to reflect the current COVID-19 pandemic. The guide indicates that an employer must consider reasonable accommodations for employees with disabilities and those who sincerely held religious beliefs conflict with receiving a vaccine. Many states accept “Religions Vaccine Exemption” letters requesting an opt-out from a mandate. However, this letter does not ensure that the employee won’t be terminated for their refusal.
While employers may be able to make vaccinations as a condition of employment, some employees may object to receiving the COVID-19 vaccine. Employers will need to decide how they will proceed in these circumstances. Terminating employees for refusing to comply with a vaccination requirement is typically not recommended—but allowing employees to take a leave of absence, transfer to another position, perform telework, or other workplace modifications could be an alternative solution. However, if no accommodation can be offered without causing undue hardship to the company, employers may have no option but to end the assignment.
If an employer mandates a vaccination, the employer may be required to cover the cost of the vaccine and pay an employee for time spent getting the vaccine. Under the Fair Labor Standards Act, an employer must cover any work-related expenses for an employee if the expense drops the employee below minimum wage. State laws may also require payment of vaccination costs. In Oregon, employers are obligated to pay all of the employee’s out-of-pocket expenses associated with time spent seeking medical attention and the cost of the vaccine required by the employer, and the vaccination occurs during work hours.
Employers cannot require COVID-19 vaccinations in the workplace if they employ specific types of workers who have contractual prohibitions. Besides workers who make requests for exemptions or accommodations due to disability or religion, these workers can be exempt by law: people licensed or certified to provide health care, employees of a health care facility, a licensed health care provider or a clinical laboratory, firefighters, law enforcement officers, corrections officers, or parole and probation officers. Employers with a unionized workforce, or who have a collective bargaining agreement that could contain direct prohibitions on mandatory vaccines in the workplace. Although less common, individual employment contracts could present similar challenges. Click here to see additional facts about exemptions and accommodations “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
Cardinal Will Keep You Informed
Employers should remember that guidance from public health authorities is likely to change as public access to the COVID-19 vaccines increase or as the threat of the pandemic evolves. Employers should continue to follow the most current information on maintaining workplace safety. It is important that employers develop an HR policy outlining any requirement or recommendation for COVID-19 vaccinations in the workplace. Call Cardinal at 800.342.4742 ext. 0 for help with updating your policy or to answer any questions you have on this topic.