Recent emergency use authorizations of COVID-19 vaccines by the U.S. Food and Drug Administration raise the issue of whether Ohio employers can require their employees to receive a COVID vaccination as a condition of employment.  The answer is “yes,” with certain exceptions.  

The U.S. Equal Opportunity Employment Commission issued guidance on Wednesday, Dec. 16, 2020, indicating that employers can require their employees to get vaccinations against COVID with certain exceptions.   

The exceptions include employees who can’t receive the COVID vaccination due to medical reasons.  Such employees can likely request exceptions under the Americans with Disabilities Act. 

Similarly, employees who claim that a COVID vaccination would violate their deeply held religious beliefs could also request exceptions.  Employers must attempt to provide reasonable accommodations to employees in these situations.

If an employee claims that they cannot receive a COVID vaccination due to a disability, or due to a deeply held religious belief, employers should conduct an individualized assessment to determine whether an unvaccinated individual will pose a direct threat to the health or safety of others and expose others to the virus at the workplace. 

If the employer determines that the presence of an unvaccinated employee poses a direct threat to the health or safety of others at the workplace that cannot be reduced or eliminated through a reasonable accommodation, the employer can exclude the employee from the workplace. If there is a direct threat to the health or safety of others that cannot be reduced to an acceptable level, the employer can exclude the unvaccinated employee from physically entering the workplace but this does not mean the employer may automatically terminate the employee.  The employer should determine whether reasonable accommodations, such as performing work remotely, can be provided.

The EEOC guidelines state that employers may rely on recommendations from the U.S. Centers for Disease Control in deciding whether an effective accommodation that would not pose an undue hardship is available. They further explain that there may be situations where an accommodation is not possible.  When an employer considers such a decision, the facts about particular job duties and workplaces may be relevant.

Employers should seek advice from their legal counsel if they intend to require their employees to receive a COVID vaccination.

Martin J. Boetcher is a lawyer with Harrington, Hoppe & Mitchell and practices in employment law. He can be reached at mboetcher@hhmlaw.com or at (330) 744-1111.