Can you require your employees to have a COVID-19 vaccine?

It depends on the job, but the answer is often yes.

After months of waiting, if you're an adult in the United States and you want a COVID-19 vaccine, you can have one. Thank God. I drove more than an hour each way to get my two Pfizer shots. Soon, I'll safely see my friends and relatives again. And, oh yes, I can travel for business again.

But not everyone is as gung-ho as I am. One in four Americans would refuse the vaccine, according to a recent NPR/Marist poll. That's a real problem. The spread of misinformation has made them paranoid — and that's more dangerous than any vaccine. If it only put them in danger, I wouldn't care. It doesn't.

Without them, we won't reach herd immunity, the point at which disease can't easily spread through the population. That, in turn, means people in your office or factory will remain vulnerable to coming down with the virus for months, years, to come. For me, someone who used to fly 100,000-miles a year for business travel, it means I'll stay stuck at home. Zooming is all well and good, but it's not the same thing as talking with people in technology conference hallways.

So, can you do anything about it? Actually, with many jobs, you can. Some are no-brainers. If you employ essential or front-line workers, in most states, you can insist that your staffers be vaccinated. Other jobs, which require travel, sales, or other public interactions, may fall into this category as well.

But, to stay on the right side of the law, you'll want to change your employment rules to require that present and future employees be vaccinated. Indeed, according to recent guidance from the US Equal Employment Opportunity Commission (EEOC), you can not only ask your people whether they have been vaccinated but can also request proof of vaccination.

What you can't do is ask them why they're not vaccinated if vaccination is not required for the job. If you do, according to Dan Kadish, a senior associate at the NY law firm Morgan Lewis in a Washington Post article, you may run afoul of the Americans With Disabilities Act (ADA). Kadish observed, "Those types of medical inquiries are only permitted where they are necessary for the job."

Can you insist that all jobs require your employees to be vaccinated?  Well, yes, you can. But there are still exceptions. For example, some employees may not be able to take a vaccine because of health problems or religious reasons.

However, if those don't apply, according to the latest EEOC guidance on COVID-19 and EEO laws, "it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities."

Your employee also has the right to ask to work remotely. The guidance reads: "For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely." Of course, by this time, you almost certainly already know if the job can be done remotely.

This, however, is only general guidance. For example, some states, such as Alabama, are considering laws to prevent employers from requiring vaccines. In Alabama, the bill is 2021 AL H 214. It reads, in part, "This bill would prohibit an employer from taking adverse action against an employee or prospective employee based on the employee's immunization status."

In other states, a so-called COVID-19 Vaccine Bill of Rights has been proposed. Sponsored by anti-vaxxers, it would ban employers from requiring workers to get vaccinated against COVID-19 — or any other disease, for that matter.

Their argument is that employees shouldn’t have to choose between getting a shot and staying employed. The counterargument, and why these laws are not likely to pass, is that there is already a long history of established employment law requiring businesses to maintain a safe workplace and not put the lives of workers and customers in jeopardy.

Of course, I am not a lawyer. If you want serious advice on how to handle employees who refuse to get with the coronavirus vaccination program, it's time to find an employment law-savvy attorney.

Personally, if I had a grumpy employee who refused to get a vaccine or work remotely, I'd give serious thought to letting him or her find a new job somewhere far, far away from my company.

We are so darn close to finally putting COVID-19 and all the annoying rules and regulations that followed it behind us. Now is not the time to backslide into letting this deadly disease linger on.

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Copyright © 2021 IDG Communications, Inc.

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