Can I Require My Employees To Get Vaccinated?

There have been a lot of questions about requiring employees to get the COVID-19 vaccination, and recent requirements by the federal government seem to have only added to the confusion among businesses about whether they have been mandated to require the vaccination, and if they haven’t can they still, at their discretion, require employees to get the vaccine. It’s fair to say that Covid compliance is still an issue that is top of mind for many Virginia businesses. 

Simply put, yes, employers can require the COVID-19 vaccination for their employees but must provide reasonable accommodations and exemptions for those that qualify. 

Employers aren’t making the decision to require employees to get the vaccine lightly. There are numerous considerations in play. Requiring the vaccine could lead to enforcement issues, for example what if the top salesperson declines to get the vaccine and doesn’t qualify for an exemption; if you’re a small business faced with that situation do you now let your best revenue generator go? There is also the concern of requiring the vaccine and an employee having a serious and life threatening reaction; that’s almost certainly a potential lawsuit coming. 

Vaccination Policies and the ADA

A mandatory workplace vaccination program must comply with the Americans with Disabilities Act (ADA). The important thing to keep in mind here is that under the ADA, employers are generally required to provide reasonable accommodations to employees who, due to a disability (which includes pregnancy) do not get vaccinated. Keep in mind that reasonable accommodations are also required for employees who refuse to be vaccinated due to a sincerely held religious belief. Unless a business can show that providing the accommodation would pose an undue hardship, significant difficulty or expenses on the employer, the accommodation requests will have to be granted. Any employee vaccination policy will need to consider the implications of the ADA and how accommodations will be handled. 

How should accommodation and COVID-19 vaccination exemptions be handled? That depends on whether the accommodation is for a disability or for a sincerely held religious belief. Here are some steps to consider that will help handle accommodation requests for businesses that implement a mandatory vaccination policy: 

  • Make sure you have a policy in place for handling accommodation requests. Implement policies and procedures for employees to follow if they are requesting medical or religious accommodation. 
  • Review all requests for exemption from the vaccine requirement. There is no particular language an employee needs to use in order to request an accommodation. Each request for vaccination exemption should be reviewed to determine whether or not the request qualifies under the disability accommodation or sincerely held religious belief accommodation. Personal preference against getting the vaccine isn’t likely to be enough to qualify for exemption, and if a vaccine policy is in place, companies will have to hold firm on the consequences in those situations or face the potential issues that come with not doing so. 
  • Start the interactive process. Accommodations are an interactive process and once a company has received one the next step is to engage with the employee, the health care provider or religious leader and gather more information on the disability or the religious beliefs. Employers need to put forth a good faith effort to make this process interactive and involve the employee. The request should be reviewed and a good practice is to put it in writing. For disability accommodations employers should probably be looking for some documentation from the health care provider regarding the nature of the disability and the duration of the disability and reasons why the disability conflicts with the vaccination requirement. Businesses will need a written release or permission from the employee to talk directly with the health care provider. For religious accommodations, businesses should be looking for an explanation of the sincerely held beliefs and where appropriate, documentation from the religious leader as to why there is a conflict with the vaccination requirement. 
  • Determine whether or not there is a disability or sincerely held religious belief. For disabilities the resource to use is the ADA; for religious beliefs the resource to use is Title VII of the Civil Rights Act. 
  • Determine if an accommodation poses and undue hardship or direct threat. Accommodations don’t have to be granted if they would result in an undue hardship on the business or pose a direct threat to the health and safety of others. Businesses will need to evaluate their individual situations under the lens of undue hardship and direct threat and determine whether or not to grant the accommodation. 
  • Notify the employee of the decision. The final step in the accommodation process would be to notify the employee of the decision, and if the accommodation is denied, employers should communicate and document any alternative accommodations that may be available. Make sure to document the entire process, and to keep all of that information confidential. 
  • Review the process. Accommodation processes aren’t set in stone. If circumstances change or needs changes then revisit the process and tweak as needed. 

Virginia Final Permanent Standard

Many Virginia employees may also remember that Virginia was the first state in the country to impose an Emergency Temporary Standard (VA ETS Standard) that dictated what steps businesses would need to take in order to help limit the spread of COVID. Those temporary standards eventually became the Final Permanent Standard. The Final Permanent Standard in Virginia was recently amended with the amendments becoming effective September 8, 2021. This represents the third version of these regulations in Virginia, and there are some changes that should be noted:

  • While the Final Permanent Standard does not require employees to be vaccinated, it does impose additional requirements on any employees who have not been fully vaccinated. Employers should consider verifying an employee's vaccination status; all that needs to be done to verify is to ask an employee if they are fully vaccinated (stop after that question) and businesses can rely on the answer of the employee without requiring proof of vaccination. 
  • Generally speaking, employers must now require unvaccinated employees to wear masks while indoors. This requirement and the K-12 school mandate currently make up most of the Virginia mask mandates.
  • A business will now, typically, be considered in compliance with the Final Permanent Standard if they are following the CDC guidance.
  • Reporting requirements have been revised to be consistent with the Virginia Department of Labor and Industry. Under the new amendments, employers must report to both the Virginia Department of Labor and Industry and the Virginia Department of Health when there are 2 or more confirmed cases among employees within a 14 day period.

Vaccination requirements are something businesses are taking seriously and looking at all the options to make the best decision for the health of their employees and for the health of their business.


Have questions about Covid-19 vaccination policies or employee policies in general, or want to discuss any legal or risk management questions? Contact us to schedule a free consultation.

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