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Can an employer require that employees be vaccinated before they can work onsite and in person?

The short answer? Yes. 

Recently, the Equal Employment Opportunity Commission (EEOC) issued guidance stating that implementing mandatory COVID vaccination policies is permissible, as long as you don't violate federal discrimination rules around disability and religion. 

In other words, if an employee has a genuinely held religious belief or a disability preventing them from getting the vaccination, legally, you must provide a reasonable accommodation to them that does not result in an undue hardship. When considering disabilities, remember to respect the rights of pregnant employees, as they are also protected under federal law.

However, if you are unable to reasonably accommodate these employees, you may exclude that employee from the workplace. 

If an employee has a valid Vaccine Exemption Form on file, an employer may want to consult an attorney before firing them for refusing to get vaccinated. Depending on the situation, it could  violate state and federal laws prohibiting discrimination. If there is a direct threat to other employees' health, then an employer may be justified, but should still proceed with caution and consult an attorney first. 

Requesting proof of vaccination, in general, is legal. But employers need to be mindful of their employees' privacy and to not collect any other unnecessary medical information.

How can employers screen employees for COVID-19 symptoms?

Employers may screen employees for COVID-19 symptoms before they enter the workplace. For example, employers can: 

  • Ask employees if they have any COVID symptoms, such as cough, fever, or shortness of breath. 
  • Ask if employees have been around anyone with COVID symptoms. 
  • Take employees' temperatures before they enter the workplace.

Can employers require that employees get tested for COVID-19?

Yes, the CDC and EEOC have extensive guidelines on how businesses can monitor employees for symptoms and test employees. Importantly, to be compliant with the Americans with Disabilities Act (ADA) and federal law, employers cannot require antibody testing, as these tests only tell if a person had COVID-19. If employers plan to test employees, the viral test should be used, as that test result shows whether a person is currently infected. 

The CDC does discourage employers from requiring sick employees to provide a COVID-19 test result or a healthcare provider note in order to validate their illness to qualify for sick leave or return to work. However, the EEOC states that employers can require testing as long as they are compliant with the federal law. Employers should consult with an attorney if they plan to require testing.

If an employee tests positive for COVID-19, can an employer require him or her to have a negative test before returning to work?

The CDC has specifically stated that employers should not require a negative COVID-19 test before allowing employees to return to work. But, as the EEOC has explained, employers can nevertheless require testing on site or through a third party to prevent an outbreak in the workplace.

Employers may want to consider speaking with an attorney to discuss how to do so legally, particularly as local, state and federal law continues to evolve in response to the pandemic.

What if an employee refuses to come to work for fear of infection?

Undoubtedly, the last year has been one filled with fear, anxiety, and uncertainty. With the emergence of COVID's delta variant and reported break-through infection cases, you may have employees that refuse to come to work for fear of infection. 

The Occupational Safety and Health Act protects employees refusing to return to the workplace if they reasonably believe they are in "imminent danger" of contracting the virus. To take advantage of this protection, the employee cannot be generally scared of getting the COVID virus but must specifically prove this fear. However, if there is no imminent danger, and the employee still refuses to return to work, that employee is not entitled to pay.

Although you may have some employees fitting this category, other workers may be concerned about COVID—or the delta variant—generally. If this is the case, you may want to talk to your employees about the safety measures that have been implemented, demonstrating your efforts to create a safe workplace. Overcommunicating is key here for employers. Doing so can alleviate many of the concerns and fears your employees might generally have around becoming infected themselves or spreading an infection to others.

Part of your employee communication should consist of a written workplace Vaccination Policy, whether you decide to mandate vaccinations or not. However, when drafting your policies and procedures, be sure to consider all applicable federal and state laws, such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, along with any local requirements, such as mandatory masking.  Additionally, be sure to take into account your industry and community standards, as well as the makeup of your workforce, when you draft your return-to-work policies. 

Use clear and direct language about vaccination requirements, exemptions, and reasonable accommodations, such as social distancing, working remote, or using paid leave. Also, lay out the consequences of not following the policies, such as termination of employment. Practically, it's best to consult with an attorney before actually terminating an employee for not following these rules, making sure that you are not violating any employee protections offered by federal, state, or local laws. 

Additionally, make sure your policies give directions on who to talk to internally — such as human resources or the employee's direct manager—if they have questions or concerns. Allowing for open communication channels is critical to earning your employees' trust, making your workplace safe and productive.

Note that as an employer, you will need to keep your policies updated, staying abreast of multiple changes in guidance—both locally and as issued by the Centers for Disease Control and Prevention (CDC), including evolving guidance for fully-vaccinated employees. 

How should employers evaluate vaccine exemptions?

As a small employer, if an employee tells you that they cannot receive the vaccination because of a disability or religious belief, you should first determine if your business is subject to the requirements of the ADA and Title VII, and if it is, follow the legal requirements and guidance of both. When evaluating these exemptions, here are some steps that you may need to take:

  • After an employee notifies you of their exemption, preferably in writing, you should confirm whether the employee satisfies the rules surrounding disability or religious objections.
  • Next, you will need to determine whether a reasonable accommodation is available for this employee. Reasonable accommodations include masking, social distancing, reducing or eliminating interactions with customers or clients, working remotely, and modifying shift schedules. When discussing accommodations with your employees, you may review the guidance from the Job Accommodation Network (JAN) or the CDC, helping you come up with a reasonable alternative for your employee.

It's best to include these steps in your written policies and procedures about returning to work and the COVID vaccination. 

Can an employer require verification of vaccination due to COVID-19 concerns? 

Employers can ask if employees have been vaccinated, even requiring Proof of Vaccination through self-attestation or a COVID-19 vaccination record card or passport, according to the EEOC's recent guidance. In explaining this, the EEOC states that if you are covered under the Americans with Disabilities Act (ADA) you may request proof of vaccination from your employees, as such a question does not necessarily elicit details about a disability. 

However, it would be best if you were careful asking additional questions, such as why an employee chose not to receive the vaccination. Although there are many reasons why employees decided against being vaccinated, such questions can probe into religious or medical reasons, triggering additional ADA protections.

Note that this topic is hotly debated, despite the EEOC's guidance. Many employers (and employees) are concerned about privacy issues, where others believe that they have a responsibility to those around them to ensure a safe workplace. Expect continued discussions around employer verifications, staying on top of changing laws, rules, and guidance. 

Keeping your employment and HR documents up-to-date, including policies, exemptions, and verifications related to the COVID-19 pandemic, is vital to protect your employees and your company. In addition, employment law is constantly changing, especially in light of the pandemic, so take the time to understand your options and protect yourself with proper documentation and legal advice from a Rocket Lawyer On Call® attorney.

This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.

Megan Derguti
Megan Derguti
VP of People Operations at Rocket Lawyer

Megan joined Rocket Lawyer in 2020 as the Vice President of People Operations. For nearly 15 years, she has helped a number of Bay Area technology companies strategically leverage the most critical resources of a business: its people.

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