COVID FAQ: Unvaccinated Employees

Article At A Glance:

Some employers have chosen to implement COVID-19 vaccination mandates.

To have a vaccination mandate, the company should have a clear written vaccination policy and provide employees with time to comply.

The policy should allow for disability and religious exemption accommodations for eligible employees.

Employers can also consider requiring regular COVID-19 testing for unvaccinated employees, which employers are required to pay for, among other alternatives.

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Q: Should Employers Have a COVID-19 Vaccination Mandate?

A: This will vary depending on each workforce and the extent to which social distancing and remote work is possible. For workers that cannot socially distance or work remotely, companies have mandated COVID-19 vaccines. A legal vaccine mandate requires the employer to have a business necessity for the mandate, and best practices require a written vaccination policy that is provided to workers with adequate time to comply. Any adverse reactions to an employer-mandated vaccine will be subject to the employer’s workers compensation insurance coverage.

Q: What Should a COVID-19 Vaccination Mandate Include?

A: Employers that mandate COVID-19 vaccinations should ensure that the vaccination policy is communicated to employees in writing. Employees should be provided a reasonable amount of time to review the policy and meet its guidelines. COVID-19 vaccination policies should have language in them pertaining to reasonable accommodations provided to employees with religious and disability exemptions.

Q: What Legal Exemptions Are Available for Unvaccinated Employees?

A: Employees can have a disability or religious exemption to a COVID-19 vaccination mandate. Religious exemptions must be based on sincerely held religious beliefs under Title VII of the Civil Rights Act of 1964. Disability exemptions are governed by the Americans with Disabilities Act (ADA).

Employers can also consider other alternatives for unvaccinated employees, such as regular COVID-19 tests, social distancing, alternative schedules, telework, and masking.

Q: Does the Employer Have to Pay for COVID-19 Testing for Unvaccinated Employees?

A: State laws can vary, but generally employers should cover any out-of-pocket costs for COVID-19 tests that it requires employees to take.

Q: Can Employers Terminate an Employee for Refusing to Get Vaccinated?

A: In some circumstances, an employee can be terminated for failing to follow an employer’s vaccination policy. Employees should be given a reasonable amount of time to adhere to a vaccination policy, provided the policy in writing, and given information about the employer’s ability to provide reasonable accommodations to those with disability and religious exemptions. Because terminations are risky, and they may not only harm employee morale during an already difficult time but also open a company up to legal liability, they should always be taken after careful consideration and consultation with an employment lawyer familiar with your state’s laws. Other alternatives should be considered to termination, including social distancing, incentives to vaccinate, masking, alternative shifts, reassignment, testing, and masking.

Companies and workers that need help with a vaccination policy or navigating employment laws during the COVID-19 pandemic should contact Lipp Law for further assistance. Lipp Law has lawyers licensed in DC, Maryland, and Virginia, and the above information is general in nature and should not be taken as legal advice.