Return to Work: Mandatory Vaccinations

The question is simple: can an employer require that an employee returning to the workplace be vaccinated?

The general answer is simple, too: yes, in most cases an employer can require workers to be COVID vaccinated. And they can require written proof of it, too. And no, that’s not a HIPAA violation.

But as with many seemingly simple answers in the law, there are exceptions.

First, some people are not able to be vaccinated. These include, but are not limited to, people who have disabilities (most often auto-immune conditions), and people who have sincerely held religious beliefs. In both cases, the legal lens to examine the issue is the same: the employer must make a reasonable accommodation (not necessarily the accommodation that the employee requests) to the employee’s inability to be vaccinated. Ideally, the employer and the employee will have a cooperative, productive discussion aimed at finding a way to allow the employee to work. The employer’s obligation to accommodate ends at the point that the accommodation in question becomes an undue burden on the employer.

What makes an accommodation “reasonable” or “unreasonable”? When does the burden on the employer become so severe that it’s “undue”? Those are the $64,000 questions, aren’t they? The EEOC has made fairly elaborate guidance on that point available, but the quick answer is, if you’re at the point where reasonability of a proposed accommodation is the issue, that’s probably a good time to call an employment lawyer. You’re in ADA compliance territory here (or, in the case of a religious exemption, Title VII, and cognate state law, territory).

Second, there may be statutory exemptions for certain kinds of people. For instance, Oregon law exempts certain professions from mandatory vaccinations under ORS 433.416(3), which provides that a “worker” shall not be required as a condition of work to be immunized unless such immunization is otherwise required by law. The phrase “worker” in 433.416(3) is defined under ORS 433.407(3) “as a person who is licensed or certified to provide health care, an employee of a health care facility, of a licensed health care provider or of a clinical laboratory, a firefighter, a law enforcement officer, a corrections officer or a parole and probation officer.” (Citation cleaned up.)

Now, one might question the wisdom of the Oregon Legislature in allowing health care workers who come in direct contact with patients, or corrections officers who come in direct contact with inmates, to choose for themselves to not be vaccinated. I certainly do — these seem like exactly the sorts of people one would want to make sure were vaccinated because they have a high likelihood of becoming disease transmission vectors. But that’s about as close as I’m going to come to being political in this post — whether we like it or not, that is the law. This brings us to another point, because

Third, even for employees who are not vaccinated and fall within these exceptions, other kinds of pathogen controls can be required by an employer, whether or not the CDC or a State health authority or a state’s governor states that they are necessary or required by law. Employers are free to require that their employees go above and beyond the minimum requirements of the law. So if an employer chooses to adopt a policy that employees, or even only certain kinds of employees, must wear masks despite the now-advanced state of COVID vaccinations in the general public, those employees can be required to wear those masks. (Again, note disability and religious exceptions, which require reasonable accommodations but not undue burdens.) Same thing for social distancing, hygiene, and other kinds of rules.

And Fourth, a caveat about the proof of vaccination. While the proof of vaccination isn’t the sort of information that HIPAA protects, some kinds of vaccination certificates may include other information that is. So yes, the employer can demand proof of vaccination as a condition of the employee returning to work. I’d advise an HR professional to note no more than “Proof of vaccination was provided on [date]” in the employee’s file. I wouldn’t advise keeping a photocopy of that proof, nor would I advise gathering any information about a diagnosis or a course of treatment for a different condition that interferes with the employee’s vaccinatability (if that’s a word, and if it isn’t, I trust you’re smart enough to figure out what I mean by it). Rather, I’d guide the HR professional to note “Employee requests an accommodation in lieu of vaccination” and then document the interactive process and the results of it leading to the reasonable accommodation that works around the inability to be vaccinated, permits the employee to execute the essential functions of the job and accomplishes the employer’s goal of a safe workplace.

It remains my firm opinion that an employer’s obligation to provide a safe workplace includes providing a workplace in which transmission of a contagious, potentially debilitating disease is unlikely. Not every workplace will need the same solutions, and employees can be required to comply with most reasonable and not-illegal instructions, policies, and requirements aimed at accomplishing that goal. Vaccinations are likely a big part of that. While I’m not a doctor to tell everyone to get vaccinated, COVID vaccinations are going to be safe and effective for most people, with the phrase “most people” meaning “nearly everyone.”

Yes, there are exceptions. But yes, subject to these exceptions, employers can require that their employees be vaccinated.

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