Ah, the joys of COVID-19!

Now that COVID testing is widely available and we have now started distributing vaccines, there is a resulting question at the workplace.

Can my employer require me to get tested and/or get a vaccine?

Per the latest from everyone’s favorite alphabet soup government organization, the EEOC (Equal Employment Opportunity Commission), that answer is yes!

Your employer can legally require testing and/or vaccinations per the latest guidance released on December 16th, 2020.  You can see the entire Q&A from the EEOC here.

Nurse Katie McIntosh administers an injection of the Pfizer/BioNTech Covid-19 vaccine to Clinical Nurse Manager Fiona Churchill, at the Western General Hospital, in Edinburgh, Scotland, Tuesday Dec. 8, 2020. Key workers and the elderly are among the first to receive a shot of the coronavirus inoculation. The United Kingdom is beginning its vaccination campaign to inoculate people against the COVID-19 virus.(Andrew Milligan/Pool via AP)

According to the EEOC on COVID:

  • “The ADA requires that any mandatory medical test of employees be “job related and consistent with business necessity.” Applying this standard to the current circumstances of the COVID-19 pandemic, employers may take screening steps to determine if employees entering the workplace have COVID-19 because an individual with the virus will pose a direct threat to the health of others. Therefore an employer may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others.”

The rationale that the EEOC uses here is that the testing must be “job related and consistent with business necessity”.  This means that if the employer chooses to screen applicants and/or employees for COVID-19, it must do so for every employee or potential employee.  Further the notice goes on to say that employees could be denied or delayed in their employment process if they do test positive and “pose a direct threat to the health of others.”

This opens up a whole new can of worms for employees and employers.  For employees, get ready to see mandated testing and employer mandated vaccinations (when available).  For employers, the question remains to mandate or not to mandate testing and vaccinations.  Without protections at the state and federal level from lawsuits regarding COVID-19 exposure in the workplace, employers may have no choice but to mandate testing and vaccinations.  Obviously, this would be to protect the employer from any COVID related lawsuit.  For Human Resources practitioners and businesses in general, this creates some questions around privacy and reasonable accommodations that are complex and need to be navigated carefully.

The EEOC goes on to say that unless there is a very strong case based on disability or if a reasonable accommodation can be made (eg working remotely):

  • “A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.“

In Summary:

Based on EEOC guidance, your employer could require you to be tested and or vaccinated as a condition of employment.  Admittedly, there is much trepidation and skepticism surrounding the COVID-19 vaccines that have currently been released.

Certainly, the vaccines have been trialed and tested by medical professionals.  However, no-one quite knows if there will be any long-term side effects from the vaccination process – or for that matter how long the vaccination will remain effective.  Just look at our annual flu shot as an example.  This much is certain though, now that we have the vaccine, it is a good bet that at some point your employer may require the vaccination for you to be able to work.

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