Employment Best Practices Regarding COVID-19 Vaccination

Written by: Natalie Klyashtorny

Prior to the COVID-19 pandemic, mandatory vaccinations in the workplace were fairly rare, with the exception of those who work in healthcare. Flu vaccinations have been commonly administered to healthcare workers in the past, and the legal findings from those cases can similarly be applied to Covid-19 vaccination best practices. With so much uncertainty, it’s best to know what rights employees and employers have concerning mandatory vaccination.

An employer is allowed to mandate Covid-19 vaccination and many already have.  However, an employer is required to accommodate those who do not wish to be vaccinated on the basis of religious reasons or based on disability. 

The religious exception is the most complex of the three, due to the uncertain nature as to what constitutes a religious belief. Personal preference and social, political, or economic philosophies are NOT protected under Title VII of the Civil Rights Act of 1964 as a valid religious belief. 

An employer should have internal policies and procedures when it comes to dealing with this issue. If an employer has doubt, it has the right to make a limited inquiry and verification may be requested. Employees must provide information that addresses those doubts.  However, demanding excessive information may be challenged as harassment. Avoiding assumptions and stereotypes is very important when making this specific inquiry.

The ADA was enacted to protect the disabled from unlawful discrimination. Reasonable accommodations must be provided for the disabled unless it would impose an undue hardship on business operations. Undue hardship means that the accommodation would require significant difficulty or expense.

Medical exams and disability-related inquiries are prohibited unless they are either job-related or consistent with business necessity. Vaccinations are NOT considered a medical examination. It IS legal for an employer to ask an employee if they have been vaccinated and for proof, but inquiring beyond that can be tricky (example: “Why have you not gotten vaccinated?”). Asking follow-up questions like that can lead to an employee having to disclose information that an employer doesn’t necessarily have the right to obtain.

The following are best practices for an employer to consider when a mandatory vaccination policy is challenged by an employee. First, take the steps of performing a thorough analysis on why the mandate is being challenged. It’s important to ensure that there is an in-house policy that provides for exceptions to the vaccination mandate and to have a well-trained human resources staff and supervisors. Taking the steps to educate employees and providing incentives for vaccination should also be considered.

For more in-depth information on this subject, check out this webinar hosted by Nochumson P.C.’s own Natalie Klyashtorny.

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