February 05, 2021

Legal issues can impact a mandatory COVID-19 vaccine policy

There is case law to support an employer’s decision to make vaccination mandatory, but you must accommodate employees with disabilities under the Americans with Disabilities Act and those whose religious beliefs conflict.

To operate safely for both employees and customers, you should encourage employees to get vaccinated as a matter of course when a COVID-19 vaccine becomes available in your area.

There are legal implications, however, if you decide to go a step further and make vaccination mandatory.

While there’s case law to support your decision to require employees to get a COVID-19 vaccine, you still have to accommodate employees with a disability under the Americans with Disabilities Act (ADA) and those whose religious beliefs conflict under Title VII of the Civil Rights Act.

Here’s what you should know:

If I require vaccinations, how should I respond to an employee who indicates that he or she can’t get a COVID-19 vaccination because of a disability?
The ADA says that you can require that employees don’t pose a direct threat to the health or safety of others in the workplace. However, if getting vaccinated screens out someone with a disability, ADA says you have to show that an unvaccinated person would pose a significant risk of substantial harm to that person or others that can’t be reduced by reasonable accommodation.

How should I handle a request for an accommodation from an employee who doesn’t want to get a COVID-19 vaccination due to a disability?
Make sure that managers and supervisors responsible for enforcing your vaccination policy know how to recognize an accommodation request from a disabled employee and establish who needs to evaluate the request. Keep discussions with the employee about what workplace accommodations options don’t constitute a hardship interactive and flexible. Remember that it’s unlawful to disclose that you’re accommodating an employee or to retaliate against anyone requesting an accommodation.

How should I respond to an employee requesting an exemption from vaccination due to religious beliefs?
You have to provide accommodation under Title VII of the Civil Rights Act unless you have an objective basis for questioning either the religious nature or sincerity of a particular belief, practice or observance. In that case, you can ask for additional supporting information.

What if I can’t accommodate or excuse an employee from the restaurant’s mandatory policy?
If there’s no reasonable accommodation, you have the right to terminate the employee, but be sure to check other rights the employee may have under federal, state or local laws.

Can I require my employees to provide proof of vaccination without violating Title II of the Genetic Information Nondiscrimination Act (GINA)?
Yes. Asking employees to provide proof of vaccination doesn’t involve genetic information.

Does asking employees pre-screening questions before administering a COVID-19 vaccine trigger Title II of GINA?
The Association’s Restaurant Law Center recommends that restaurants request proof of vaccination rather than administering vaccinations themselves. While GINA doesn’t prohibit employees’ health care providers from asking questions about genetic information, it does prohibit you, or health care professionals working for you, to ask those questions.

What if I decide not to make vaccination mandatory?
In addition to safety precautions such as PPE, social distancing, frequent handwashing and good ventilation, COVID-19 vaccinations will be a critical tool in helping build herd immunity and ending this pandemic.

The faster vaccinations take place, the sooner you can welcome more guests—and staff—into your restaurant. To encourage employees to get vaccinations without making them mandatory, offer them time off with pay to cover their costs of transportation and eliminate their fear of lost wages. Typically, companies are offering employees from two to four hours of paid time off to get one- or two-shot vaccines. To qualify for the paid time off, ask employees to furnish proof of vaccination. If some employees still seem reluctant, put them in touch with trusted, third-party experts to provide information about vaccinations and who can answer any questions they have.

For more information, read the EEOC’s guidance on mandatory vaccinations, or sign up for the Restaurant Law Center’s free webinar on Feb. 11. If you can’t attend the webinar, you’ll find a recording after the fact in our compliance library.