The biggest question lately is, “Can I as an employer (or can my employer) mandate the COVID-19 vaccination”? The answer is yes, according to the Equal Employment Opportunity Commission (EEOC). However, if a workplace chooses to mandate the vaccination there are several important protocols they must establish to avoid discriminating against anyone in a protected group.
The COVID vaccination guidelines and the EEOC is continuously changing and updating rules. It is always best for employers to consult with their HR department or a lawyer before launching a vaccination requirement.
Common exceptions to a vaccine requirement:
The Pregnancy Discrimination Act requires women “affected by a pregnancy, childbirth and related medical conditions be treated the same as others who are similar in their ability or inability to work.” Employers deciding to institute a vaccine mandate will have to plan for accommodating pregnant women.
Age may be a reason an employee has yet to receive a vaccination or is choosing not to get one. The Age Discrimination in Employment Act (ADEA) does not require you to provide reasonable accommodations. It is still suggested to work with individuals covered by the ADEA (anyone age 40 or above) to find reasonable and suitable workplace arrangements.
The Genetic Nondiscrimination Act (GINA) prohibits employers from using employee genetic information to make decisions related to the terms, conditions, and privileges of employment. This act also prevents employers from acquiring employee genetic information and from disclosing genetic information. The applicability of GINA depends largely on who is administering a vaccine. GINA is very tricky, and it's highly recommended to speak with an expert to ensure you are not at risk of violating GINA.
Some disabilities may prevent an employee from receiving the COVID vaccination. Your best bet in avoiding an ADA complaint is to accommodate these employees. If it is impossible to make accommodations without undue hardship on your company, the EEOC says you may exclude an unvaccinated employee with a disability from the workplace, but you cannot automatically terminate employment.
Certain people refuse vaccinations based on religious practices or beliefs. The EEOC says employers should assume that an employee’s request for religious exemption and associated accommodation is based on a sincerely held belief.