Can an employer require its employees to get a vaccination?
The short answer is yes so long as the employer: (a) allows the employee to get the vaccine from an unaffiliated third party so the employer does not receive private health information that may be elicited from the pre-screening questions and which may reveal the existence of a disability and/or contain genetic information; and (b) accounts for potential reasonable accommodations under the ADA (due to disability-related objections) and Title VII (due to religious objections).
For a detailed discussion of this issue, see the updated EEOC guidance: “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” Section K, Vaccinations
COVID-19 Employee Litigation Increasing
Employees’ pandemic-related claims against employers continue to be filed and allege various theories. Retaliation claims remain steady with employees alleging they suffered adverse employment action after complaining about unsafe working conditions and inadequate precautions being taken by the employer.
Other lawsuits allege retaliation under the Families First Coronavirus Response Act (FFCRA) and the Fair Labor Standards Act (FLSA) based on the termination of employment shortly after an employee’s request for time off to care for children required to stay home due to the pandemic.
Specifically, a Florida federal court denied an employer’s motion to dismiss and allowed such claims to proceed where the employer ignored the employee’s request for paid leave and the employee was terminated “a mere seven days” after making the leave request. The court also rejected the employer’s argument that it would qualify for the FFCRA exemption for certain small employers with fewer than 50 employees stating that, “It is not a blanket exemption that automatically applies to all small employers.”
Rather, the court pointed out that there are certain criteria that must exist and be determined by an authorized officer of the employer for the exemption to apply. Namely:
- The leave requested would result in the small business’s expenses and financial obligations exceeding available business revenues and cause it to stop operating at a minimal capacity
- The absence of the employee(s) requesting leave would entail a substantial risk to the financial health or operational capabilities of the business because of the employee’s specialized skills, knowledge of the business, or responsibilities; or
- There are not sufficient workers who are able, willing, and qualified, and who will be available at the time and place needed, to perform the labor or services provided by the employee(s) requesting leave, and these labor or services are needed for the small business to operate at a minimal capacity.
Both the election of exemption and the satisfaction of these requirements must be documented.
Maintaining a Safe Workplace During COVID
Some recent lawsuits allege workplace safety issues arising out of the employer’s alleged failure to implement and maintain a safe workplace. To help avoid workplace claims, employers are advised to review the new Guidance:
The Guidance was issued under the new Biden administration on January 29 and contains additional details on identifying risks and determining and implementing key control measures. There are 16 recommended elements of an effective COVID-19 Prevention Program. Get our Employer Checklist to learn more.