The Equal Employment Opportunity Commission (EEOC) allows employers to require employees to have COVID-19 vaccines. Houston Methodist Hospital made headlines in June when the court upheld their termination of employees who did not comply with the vaccination mandate. The plaintiffs argued the hospital was violating public policy since the vaccines were distributed under Emergency Use Authorization rather than following the Food and Drug Administration’s usual processes. Federal Judge Lynn Hughes dismissed the case stating it was the hospital’s judgment to provide a safer environment for their employees and patients. Hughes also stated employees have a choice to work elsewhere.

Employers may exclude employees from the workplace who are not vaccinated as well as employees who have COVID-related symptoms. Employers are required to maintain a safe environment, and most private (non-union) employers rely on the employment-at-will doctrine. Employment at-will means either the employer or employee can terminate employment for any lawful reason without notice. This decision is black and white. Employers who choose to employ those who are not vaccinated must navigate gray waters. Those waters include compliance with the American with Disabilities Act (ADA), the Genetic Information Non-Disclosure Act (GINA), and Title VII of the Civil Rights Act, which EEOC enforces.

Wading in the ADA, employers are required to either ask all employees to self-disclose symptoms or produce a negative COVID-19 test result; or have a reasonable belief that the person may have the virus before requiring the test. EEOC enforces ADA clarified that employers may lawfully choose to test employees in lieu of mandating vaccines. Employers that require periodic tests of non-vaccinated employees may need to pay for the tests if insurance refuses to pay or free tests are inaccessible.

Reasonable accommodation under the ADA and EEOC requires employers to engage in the interactive process. This is a conversation between the employer and employee to determine whether the employee needs an accommodation to perform the essential functions of their job. In the scope of vaccinations, the employee may have a disability which counter-indicates a vaccination or a deeply held religious belief preventing one from being vaccinated. The outcome of this conversation may be the ability to work from home or to be periodically tested.   

Another aspect of the ADA requires medical examinations to be job-related and consistent with business necessity. An antibody test does not meet this standard because it may not reliably detect antibodies in someone with a current infection nor is it known whether positive antibody tests result indicates immunity. The COVID-19 viral tests are permissible.  

Employers may not ask whether family members are vaccinated or have the COVID virus. GINA prohibits employers from asking any medical questions about family members.  

There doesn’t seem to be any easy way to protect a workplace from COVID-19. Best practices include a vaccination education campaign, making vaccinations easy to get, incentivizing employees who are vaccinated, and maintaining other safety protocols of washing (or sanitizing) hands, masking, and social distancing. We are not out of the woods, yet.