The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance that employers now have the legal right to require vaccinations for their employees. This is not a new concept, flu and other vaccines have been mandated for employees far before the pandemic, however employees have been allowed to claim exceptions where appropriate. Many long-term care facility operators have begun mandating their workers to get immunized to keep their jobs. Several universities across the country have also mandated staff to get a COVID-19 vaccination. However, many employers are choosing incentives over mandates, such as monetary incentives or perks in the workplace. States have also begun such incentives and prizes to encourage citizens to get vaccinated. Incentives are allowed as long as the rewards are “not so substantial as to be coercive.”
Under the ADA, employers may also require vaccination for all employees if it is a qualification standard that is job related and consistent with business necessity. However, if an employee cannot meet such a qualification because of a disability, the employer may not require compliance for that employee unless it can demonstrate that the individual would pose a “direct threat” to the health or safety of the employee or others in the workplace. A “direct threat” is a “significant risk of substantial har” that cannot be eliminated or reduced by reasonable accommodation. The determination can be broken down into two steps: determining if there is a direct threat and, if there is, assessing whether a reasonable accommodation would reduce or eliminate the threat.
There is no federal law that specifically addresses this issue and the matter remains up to private businesses, state, or other local laws. Employees across the country have gone to court and sued their employers for vaccine requirements, however courts have sided with employers as most judges believe that mandating vaccinations amid a global health crisis is reasonable. State lawmakers have introduced legislative proposals to limit employer power to mandate vaccinations, but as judges are sympathetic to the mandates not much has come from these proposals yet.
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