For the February/March 2021 issue of Today’s General Counsel, Emily Mack outlined issues employers should consider when establishing policies related to the COVID-19 vaccination.

“Generally, employers have the right to establish mandatory vaccination policies so long as they make reasonable accommodations for employees who refuse,” Mack said. If an employee refuses to get vaccinated, and the employer determines that the unvaccinated employee poses a “direct threat,” termination may be appropriate, but certain exemptions could apply.

The Americans with Disabilities Act (ADA) could apply if an employee cannot receive the vaccine for health-related reasons, possibly requiring employers to make reasonable accommodations for these employees. While pregnancy alone is not a disability under the ADA, employers should also be prepared to make accommodations for pregnant employees. Additionally, employees refusing the vaccine on the grounds that it would conflict with sincerely held religious beliefs should be exempt from the vaccination policy based on protections under Title VII of the Civil Rights Act of 1964.

In addition to allowing a protected employee to work from home if possible, reasonable accommodations could include or making physical adjustments to allow the employee to continue performing their duties safely – unless these modifications would cause the business undue hardship. Because we are in unchartered territory as to who courts will apply the “undue hardship” exception, companies should find ways to mitigate the risks that unvaccinated employees could pose – and establish ongoing, clear communications with staff to continually assess needs and risk throughout the vaccine rollout.

“If the last year has taught us anything, it is that employers are more adaptable and resilient than ever,” Mack said. “The increasing availability of the vaccine does not mean employers should stop using unconventional solutions to retain talent despite the ongoing threat of the virus.”

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