The COVID-19 pandemic has affected many aspects of our lives, and certainly includes our jobs.
“Can employers require COVID testing?”
“What are my employee rights regarding the COVID-19 vaccine?”
These are two common questions workers ask about COVID and the workplace. It is understandable. Employee rights are far-reaching yet particularly complex during a pandemic. Employers need to follow CDC guidelines for work safety while ensuring they are not infringing on their employees’ rights. Gaining clarity on these questions is key to ensuring your rights as workers are upheld.
Can Your Employer Force You to Take a COVID Test?
The Equal Employment Opportunity Commission (EEOC), the federal agency that administers and enforces civil rights laws against workplace discrimination, including the ADA and the Rehabilitation Act, has issued official COVID-19 workplace guidelines. In these guidelines, they explain, “employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others.”
So, can employers require COVID testing? Yes. The EEOC also explains that they are allowed to require you to take a test when you initially enter the workplace or periodically to ensure you are not posing a direct threat to others. These guidelines are consistent with the ADA requirement that employees’ mandatory medical test be “job-related and consistent with business necessity.” Employers do need to ensure that the tests are considered reliable and accurate.
Can My Employer Require the COVID-19 Vaccine?
The guidelines for employment and the COVID-19 vaccine referencing employee rights laws are multifaceted. The same ADA requirements of “job related and consistent with business necessity” are also used in this circumstance. Still, there are additional factors that are considered when addressing a requirement for the COVID-19 vaccine.
Since a vaccine can carry with it a certain amount of risk to employees that have a disability, potentially making them sicker, the EEOC has detailed guidelines for employers who require a COVID-19 vaccine when they are widely available. This includes a requirement that “Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.”
If an employee who cannot be vaccinated due to a disability is determined to be a direct threat, they should provide “reasonable accommodation” to reduce or eliminate the risk. If this is not doable, the employer can exclude the person from the worksite. But this does not automatically give the employer the authority to automatically terminate the unvaccinated employee.
In addition to ADA requirements, there are also religious exemptions for those who have a sincerely held religious belief that prevents them from getting a COVID-19 vaccine.
What About Healthcare Workers?
Healthcare is an essential industry at the “front lines” — taking care of COVID-19 patients and all other healthcare needs. Nurses, doctors, EMTs, and more are typically expected to take the COVID-19 vaccine as it continues to become available. Without it, they can increase the risk to those who are already sick. Even though employers are expected to make reasonable accommodations, unvaccinated healthcare workers can potentially pose an undue hardship on their employers.
Additional EEOC Laws Addressing COVID-19 Vaccines
In addition to the Americans With Disabilities Act (ADA) and the Rehabilitation Act, the EEOC also may consider other employment laws for COVID-19 workplace guidelines. These include GINA, Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA), which prohibits genetic information discrimination in employment, Title VII, and the Pregnancy Discrimination Act.
NOTE: Equal Employment Opportunity laws, per the EEOC’s most recent guidelines, “do not interfere with or prevent employers from following CDC guidelines for work or other federal, state, and local public health authorities’ guidelines and suggestions.”
Continue to Stay Informed About Your Employee Rights
Ensuring your employee rights are upheld in the middle of a public health crisis can be daunting. With so many questions like, “Can employers require COVID testing?” and “Can employers require the COVID vaccine?” — it is important to stay informed about laws that may be evolving due to threats to public safety.
As the availability of COVID-19 vaccines continues to increase in the United States, more employers may begin to require employees to be vaccinated – but the process still needs to follow current employee rights laws.
Please Note: At the time this article was written, the information contained within it was current based on the prevailing law at the time. Laws and precedents are subject to change, so this information may not be up to date. Always speak with a law firm regarding any legal situation to get the most current information available.