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Archive February 2021 XXII, No. 2

Legal Update: How to Handle COVID-19 Vaccinations

Understanding anti-discrimination laws will help you navigate the rollout.

Casey Duhart

Casey Duhart, BS, M.Ed, JD

BIO

ADDED PROTECTION
ADDED PROTECTION Vaccination could be considered mandatory in healthcare settings if it's determined unvaccinated workers put the well-being of others at risk.

The COVID-19 vaccines are beginning to be administered and you face the possibility that some members of your staff will refuse to get inoculated. The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance on your rights as an employer and what you need to know about the legal issues surrounding the vaccine. Here are answers to key questions you might have about making vaccination mandatory — and what to do when employees decide to pass on receiving their shots.

Can you require staff to get vaccinated?

Yes, according to the EEOC (osmag.net/aD9GRe), which states that requiring your employees to get vaccinated does not violate the Americans With Disabilities Act (ADA) if you can make the case that they are a direct threat to the health and safety of others in the workplace. In other words, if it can be determined that an unvaccinated employee would expose others to the coronavirus, a COVID vaccine can be mandated.

You can ask for proof that your employees have been vaccinated because the COVID vaccinations are not considered medical examinations and not covered under ADA or Genetic Information Nondiscrimination Act (GINA) restrictions. Make sure, however, that you ask employees to not send any other medical information along with the proof of vaccination that you're not entitled to, as possession of health histories could cause future legal issues for your facility.

Can staff members refuse to get vaccinated?

Yes, employees can decline vaccination on a variety of grounds and for any number of reasons, including personal choice, fear that the immunizations were rushed onto the market, concerns about long-term health effects such as infertility — or perhaps they've already been diagnosed with COVID-19 and want to save doses for individuals who need them.

They can also object to vaccination because of religious beliefs. You generally shouldn't question the validity of claims of a religious objection. You can, however, ask for more information about their beliefs if you legitimately question the sincerity of the objection.

Employees might also not be able to receive a vaccination because of a health disability. At least one federal anti-discrimination law that sometimes limits employers' rights and ability to act on their employees' work statuses because of health issues doesn't apply here, however. The EEOC has said that GINA, which forbids you from making employment decisions based on employees' medical histories, isn't triggered by requiring a COVID-19 vaccine.

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