More Wisconsinites are getting vaccinated for COVID-19 every day and as the state gets closer to making the vaccine available to the general public, some employers are wondering if they can require their employees to get vaccinated.
The problem is, not everyone can get the shot either for physical reasons or for religious reasons, Barbara Zabawa says. She is a clinical assistant professor at UW-Milwaukee with a focus in health and wellness law and compliance.
Zabawa says both groups are protected by the Equal Employment Opportunity Commission (EEOC) and according to a December memo issued by the EEOC, employers can fire employees for not being vaccinated but they must be able to prove that there are no reasonable accommodations that can be made.
“Termination would need to be considered quite seriously, all the different types of legal concerns when you decide to terminate someone. But excluding them from the workplace is definitely possible,” she says.
This means that companies could require anyone who enters their office to be vaccinated but allow anyone who can’t be vaccinated to work from home, Zabawa explains. They could also allow non-vaccinated workers into the building and implement safety measures for them and other workers.
“There are a lot of options, you know, there’s social distancing, there’s working remotely, there’s wearing masks or other protective equipment. So there are choices out there,” she says.
While employers are advised by the EEOC to take workers at their word when they say they have a valid exemption, employers are allowed to ask for evidence or further explanation. For those not able to get the vaccine due to a disability, she says, this would be providing some medical documentation explaining why the vaccine would do more harm than good.
But for those citing religious exemption, it enters a much grayer space. Some cases involving mandatory flu vaccines have gone so far as having to go to court and examining whether or not the workers’ beliefs are sincerely held.
“The courts have been split as far as their willingness to side with the employee on the sincerity of their religious belief,” she says.
Zabawa says she believes courts may be more likely to side with employees in the case of the COVID-19 vaccine because it hasn’t gone through the decades of testing like the flu vaccine has gone through.