By Martin Boetcher

The rollout of COVID-19 vaccines across the country and EEOC guidance supporting the ability of employers to require employees to be vaccinated raise the issue of whether employers should implement such requirements. An employer’s decision on that issue should consider several important factors and should include consultation with legal counsel.

Background

The U.S. Equal Opportunity Employment Commission issued guidance in December 2020 indicating that employers can require their employees to get vaccination against COVID, with certain exceptions. Exceptions include employees who can’t receive the COVID vaccination due to a medical reason and those who claim that a COVID vaccination would violate their deeply held religious beliefs. In those situations, employers must attempt to provide a reasonable accommodation unless such accommodation would cause an undue hardship to the employer. 

The U.S. Food & Drug Administration granted full approval of the Pfizer vaccine on Aug. 23, 2021 for people 16 years and older. Vaccines developed by Moderna and Johnson & Johnson have been granted emergency use authorization by the FDA.

Requiring vs. Encouraging Vaccinations

This raises the issue of whether or not an Ohio employer should require its employees to receive a COVID vaccination or simply encourage it.

Many employers are currently encouraging their employees to receive a COVID vaccination rather than requiring it. This might change once full use approval of the COVID vaccine is authorized by the FDA. Encouraging a COVID vaccination, rather than requiring one, is less likely to elicit a lawsuit or challenge to the employer’s COVID vaccination policy. 

Whether an employer requires its employees to become vaccinated may depend in part upon the nature of the industry and jobs involved. In Ohio, Mount Carmel Health in Columbus issued a COVID vaccination requirement for its staff in July 2021. Summa Health in the Akron area and Nationwide Children’s Hospital in Columbus are among the hospitals that have indicated they would mandate vaccines effective in the upcoming months.  

According to Becker’s Hospital Review, more than 100 hospitals and health systems throughout the United States have also implemented mandatory vaccine policies for staff, with exceptions.  

In addition to the health care setting, some Ohio colleges and universities are now requiring their students to be vaccinated before coming back to campus. Cleveland State University is requiring vaccinations for all students living on campus. The College of Wooster and Kenyon College are among Ohio universities requiring vaccinations for students enrolling in the 2021-2022 academic year.  

Some employers establishing a policy of encouraging COVID vaccinations are providing incentives to employees to receive it. Incentives could include additional time off with pay or bonuses.

Asking Employees About Vaccinations

Whether an employer requires or encourages a COVID vaccination of its employees, it is permitted to ask employees if they have received a vaccination. 

An employer also can require its employees to provide proof that they received the vaccination, such as a vaccination card from the Centers for Disease Control. According to the EEOC guidance, asking employees if they have been vaccinated and requesting that employees provide proof of vaccination is not likely to elicit information about a disability and is not a disability-related inquiry.

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