Employers can bar unvaccinated employees from the workplace, EEOC says

By January 5, 2021 No Comments

The Equal Employment Opportunity Commission (EEOC) ruled on Dec 16th that employers are entitled — and required — to ensure a safe workplace in which “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” That can mean a company requiring its workforce to be vaccinated.

There are certain restrictions on employers. Workers can reject vaccinations based on religious, health or philosophical objections. According to a recent article in the National Law Review, the Americans with Disabilities Act limits vaccine requirements to those that are “job-related, consistent with business necessity or justified by a direct threat, and no broader or more intrusive than necessary.”

New polls suggest nearly half of Americans would not take a coronavirus vaccine. Many of them cited concerns about how quickly the vaccines were developed and did not want to be among the first to receive an experiment inoculation.

With so many people reluctant to be vaccinated, it has raised questions about whether the shots will be mandatory.

An employer could down the road mandate that an employee get the vaccine. According to Bob Harris, an attorney with Vorys, Sater, Seymour and Pease LLP, it would uphold in Ohio courts.

“It’s generally lawful to make a vaccine mandatory,” said Harris. “We’re in an emergency situation, we have a pandemic. An employer is entitled to do whatever it thinks is best and most appropriate to keep its workplace safe.”

Employers can also demand their workers to be vaccinated within reason, according to OSHA. The agency has a list of vaccinations employers can require, including hepatitis, tuberculosis, measles, mumps and rubella. In 2009, it added the flu vaccine to its list.

“Some employers might say we’re going to terminate, some may say we’ll give you a leave of absence unpaid, that whole spectrum of options is available to an employer,” said Harris.

U.S. employers could mandate a COVID-19 vaccine, but are unlikely to do so -experts

Private U.S. companies have the right under the law to require employees to get vaccinated against COVID-19, but are unlikely to do so because of the risks of legal and cultural backlash, experts said, in a report issued by Reuters.

“Companies have every good reason to get all of their employees vaccinated and also have an obligation to keep all employees and customers safe,” said Lawrence Gostin, a global health law professor at Georgetown University.

The Equal Employment Opportunity Commission in May said employers were allowed to compel employees to get a coronavirus test before allowing them to return to work, a decision that some experts said might be extended to vaccine mandates.

But Robert Field, a law and public health professor at Drexel University, said companies considering mandates should wait for vaccines to undergo a full-fledged regulatory review process.

“Employers are on shakier grounds because of the emergency use authorization,” Field said, adding there was no precedent for vaccine mandates during that phase.

U.S. courts that have ruled on lawsuits by healthcare workers opposing employer-mandated flu vaccines have largely sided with hospitals as long as they provided reasonable exemption policies, court records showed.

U.S. agencies to date have not weighed in on COVID-19 vaccine mandates, but OSHA in the past has said employers have the right to mandate vaccines.

KPMG survey: 82% of organizations allow employees to decide when they feel safe to return to the office

Only 27% of employers plan to return office-based employees to physical locations in the near term, with most pushing back the reopening of their workplaces to later in 2021, and some permanently not requiring a return to the office, according to the KPMG survey of U.S. senior executives at 100 companies that represent approximately five million employees in total. 

The survey results also indicated that 82% of companies are letting employees decide when they feel safe and comfortable returning to the office, with only 18% mandating that employees return to the office by a certain date, at this time.

The survey also found that organizations are implementing a variety of measures to manage employee risk, with social distancing being the most frequent activity at 52%, followed by contact tracing at 48% and daily symptom checks at 44%. 

Nearly all employers, 99%, are investing in technologies that facilitate employee wellness (45% of survey participants), readiness (43% of survey participants) and workforce health tracking (41% of survey participants). The survey also reveals an increased interest in technology investments that support risk management strategies, and help manage restart policy on an ongoing basis, even as organizations scale their virtual workforces in the future.

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