Ask the BPHR Advisor: Can We Require the COVID Vaccine?

Ask the BPHR Advisor: Can We Require the COVID Vaccine? 700 875 Balance Point Team

Updated 3/23/21

BPHR’s Director Lisa Salcido, SPHR, SHRM-SCP provides answers to your pressing HR questions.

Question: Is it legal for employers to require their employees to be vaccinated for COVID-19?

Answer: The COVID-19 vaccine is the hot topic in 2021. As vaccines are rolled out, many businesses are confronted with decisions regarding their workplace and their employees. While there are many uncertainties, here is what we currently know:

Each state is distributing the vaccine based on prioritization schedules, and it may be months until your employees are able to be vaccinated. While the COVID-19 vaccine has been authorized for emergency use, it has not yet been licensed under the FDA’s full approval process, and employees may object to being vaccinated until more clinical data is available.

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) released guidance that implies, in certain circumstances, employees can be required to receive a COVID-19 vaccine. The State of New Jersey put forth guidance that indicates yes, an employer can require COVID-19 vaccines for employees to return to the workplace, unless a health or religious reason precludes them.

Businesses that implement a vaccine mandate policy must include a procedure for employees to request an exemption, or a reasonable accommodation, based on a disability or religious belief. The EEOC warns employers to be mindful of the questions that they ask employees about their health and vaccination status. Questions, and documents indicating proof of vaccination, must not disclose any protected medical or genetic information.

Employers may be permitted to keep unvaccinated employees out of the physical work location, however this does not mean that employers can automatically terminate those workers who cannot, or do not wish, to be vaccinated. There are already several states, including New Jersey, where bills are being introduced to prevent employment discrimination against those who refuse the vaccine.

Given the complexities, cautious employers should hold off on creating any policy until the vaccine is widely available, clinical safety evidence is better understood, and the early lawsuits play out in court.

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DISCLAIMER: The material presented on this page is for informational purposes only and does not constitute legal advice or legal opinion. 

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