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It can certainly be said that, like the subject of the famous Pat Benatar song, COVID-19 does not fight fair.  And like Pat Benatar, humanity has declared, “Knock me down, it’s all in vain.  I get right back on my feet again.”  We have received several calls regarding employers requiring their workers to be vaccinated.  This blog post will answer some of the most asked questions.

The question we receive most often is, “Can a company require employees to get the COVID-19 vaccine?”  The Equal Employment Opportunity Commission (“EEOC”) has made it clear that covered employers (generally, employers with 15 or more employees) can require all employees coming into the workplace to be vaccinated as long as the employer complies with the relevant laws (such as Title VII and the Americans with Disabilities Act).  An employee may seek a reasonable accommodation to be excused from the requirement for reasons such as a disability or a sincerely held religious belief, practice, or observance.  An employer must evaluate the accommodation request to determine if a reasonable accommodation can be provided that does not pose an undue hardship (significant difficulty or expense) on the employer.  Employers must ensure they have a policy that does not discriminate against an employee due to a protected class (for example, race, gender, age, religion, sex, or any other class protected by law).  Reasonable accommodations that employers may provide to those with a disability or a sincerely held religious belief include, but are not limited to, requiring the employee to wear a face mask, requiring the employee to “social distance” from other employees, working remotely, or periodically being tested for COVID-19.  On a related note, the Department of Labor has made it clear that under the Fair Labor Standards Act (“FLSA”), an employer is required to pay an employee for time spent waiting for and receiving medical attention at their direction or on their premises during normal working hours.

Another question we often receive is, “Can a company reward an employee for getting the COVID-19 vaccine?”  The answer is yes, an employer may provide incentives to employees to get vaccinated, if the employer does not acquire genetic information about the employee.  These incentives may include financial bonuses or additional paid time off.

One final question we often receive is, “May a company require proof of vaccination?”  Yes, an employer may require proof of vaccination.  That information, however, must remain confidential in the employee’s medical file.

The federal government has added a new wrinkle to this issue by announcing that, via Executive Order and the Occupational Safety and Health Administration (“OSHA”), it will mandate vaccines (or, in some cases, weekly testing) for federal employees, government contractors, and all employers with 100 or more employees. These measures are highly controversial and will undoubtedly be subject to Constitutional and other legal challenges.  We will provide further updates as these disputes are resolved in the federal courts.

As we have noted previously, the COVID-19 pandemic has led to an ever-changing landscape.  Our firm will continue to “put up our dukes” and assist clients in traversing through this crisis.  Please stay tuned to this blog for additional updates and contact us if you have any questions or concerns.

We hope you and your family stay healthy and safe.