By Larry W. Zukerman and Adam M. Brown | Special to the CJN | April 16, 2021
Over the past few months, whether through hushed whispers during Zoom calls or otherwise, many people have been on both the asking and receiving ends of the same question: Did you get the vaccine? Are you going to get it? How did you sign up?
With the arrival and widespread roll-out of the vaccines, employers nationwide are grappling with the legal and ethical considerations of mandated COVID-19 vaccinations.
Surely, while there are many people who went to great lengths to get the vaccine, others view this “modern miracle” with skepticism and even doubt. But what if an employer wants to require its employees to be vaccinated? Can COVID-19 vaccinations be mandatory?
In short, the answer is yes – as long as the vaccine mandate is employment-related, a business necessity, with the goal of maintaining a safe work environment. But there are several exceptions.
In December 2020, the U.S. Equal Employment Opportunity Commission published its technical assistance questions and answers regarding COVID-19, which helped provide guidance for employers wrestling with the idea of mandatory COVID-19 vaccinations.
Generally speaking, employers can require that their employees receive the COVID-19 vaccination if doing so does not conflict with other laws, such as the Americans with Disabilities Act, the Age Discrimination in Employment Act and other employment laws. This means employers must provide an exception and accommodations for employees who, for a permitted reason such as age, religious beliefs or a legitimate disability, do not want to receive the vaccine.
Recognizing the varying differences in beliefs concerning the vaccine, many employers are opting not to mandate vaccinations and, instead, to focus on encouraging their employees to receive the vaccine, or even providing incentives for employees to get vaccinated. In an effort to avoid contributing to the ongoing divide between those who are vaccinated and those who are not, this might be the most equitable approach to the situation, at least initially.
Further, mandating COVID-19 vaccinations could create internal, personnel issues among employees who have different beliefs about the vaccines, causing some employees to feel ostracized.
Notably, the EEOC’s guidance indicates that, in general terms, employers are permitted to ask their employees whether or not they have received the COVID-19 vaccine, or even require employees to show proof of vaccination. This is because the EEOC’s guidance provides that such questions do not constitute “disability-related inquiries,” which may run afoul of certain federal employment laws.
Alternatively, employers must tread softly in this area because questions from an employer about why an employee did not receive a vaccine may constitute a “disability-related inquiry,” in violation of federal law.
Regardless of which side of the fence one might fall on the issue, all employers must consider these various factors when determining how to approach this sensitive, though vitally important topic. Similarly, employers should consult with legal counsel specializing in employment law prior to implementing any mandatory vaccine requirements, simply to ensure complete compliance with all applicable state and federal laws.
Larry W. Zukerman is the managing partner of Zukerman, Lear & Murray, Co., LPA in Cleveland and Adam M. Brown is an associate attorney. For more information, visit zukerman-law.com.
