As the latest surge in COVID-19 cases caused by the Delta variant begins to wane, associations are once again thinking about returning to a more regular or hybrid in-person workplace environment. A critical question in those plans: What policies can, and should, an association require when it comes to vaccinations for its employees? In this article, we provide some of the basic legal principles and practical pointers of how to navigate this area.

Can associations require that its employees be vaccinated against COVID-19?

Generally, yes. Associations in most jurisdictions are well within their legal rights to require that employees be vaccinated, subject to some important exceptions created by federal law, specifically the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act. These exceptions require employers to provide reasonable accommodations to employees with disabilities or medical conditions that preclude the vaccine, along with those with sincerely held religious beliefs that are conflict with receiving the vaccine.

However, as this situation is evolving, it is also important to check applicable state and local laws. At press time, for example, legislative and executive orders in Arkansas, Montana, Texas, and West Virginia have affected an employer’s obligations regarding vaccine mandates.

Vaccination mandates for employees are new terrain for associations. Whatever route your association chooses regarding employee vaccination policies, a clear communication policy will be critical.

Is an employee exempt for merely claiming an exemption to a vaccine mandate?

No. Regarding the exemption provided by the ADA to employees with disabilities or medical conditions that preclude the vaccine, employers are allowed to ask questions or request medical documentation to determine if the employee is, in fact, disabled and if such a disability necessitates an accommodation. Regarding the religious exemption under the Civil Rights Act, employers should ordinarily assume that an employee’s request is based upon a sincerely held religious belief. However, if an objective basis exists for questioning the religious nature (e.g., as opposed to philosophical or general hesitancy to the vaccine) or sincerity of the belief, an employer may request additional supporting information.

Furthermore, even if the employee does qualify for one of the recognized exemptions, this does not mean the employee is exempt from all cautionary protocols. Rather, the employer must simply provide the employee a reasonable accommodation.

What does it mean to provide a reasonable accommodation?

In general, a reasonable accommodation allows the employee to perform the essential functions of their job without posing undue hardship on the employer. The types of reasonable accommodations granted from employment-related vaccine mandates can vary, but typically include either continued remote work or routine testing coupled with mask-wearing and social distancing while indoors in lieu of compliance with the vaccine requirements. The reasonable accommodations offered may vary, depending upon job requirements, but should be applied consistently to all similarly situated employees. For example, remote work might not be a reasonable accommodation to offer to an association’s director of meetings who must travel and attend in-person events, but it may be appropriate for someone in the accounting or publications department.

If a reasonable accommodation from a vaccine mandate is required testing, who pays for the test?

At the time of this writing, there is no federal guidance requiring employers to pay for the employee’s testing. However, this is another area where state law may require something different. For example, California requires many business-related expenses to be reimbursed. Additionally, some states have statutes that require an employer to pay for the costs of any medical testing required as a condition of employment, which may apply as well.

If my association imposes a vaccination mandate, should it verify vaccination status?

If an employer imposes a mandate, it is a best practice to verify compliance with this mandate – i.e., by asking employees to provide proof of their vaccination. The ADA requires that employers maintain the confidentiality of employee medical information, such as the employee’s vaccination status. The most helpful method of ensuring confidentiality is to verify vaccination status, but copies of the employee’s vaccination card do not need to be retained. All information regarding employees’ vaccination statuses should be stored separately from personnel files.

Vaccination mandates for employees are new terrain for associations. Whatever route your association chooses regarding employee vaccination policies, a clear communication policy will be critical. Employers will encounter apprehensive employees, both those afraid to return to work without mandates and those skeptical of them. Clear communications and discussions led by empathy and understanding will be crucial to navigating these issues with success.

The author would like to thank Sue Capon, chief operations officer, ISPOR—The Professional Society for Health Economics and Outcomes Research, and Gary Roebuck, deputy executive officer, Association of Research Libraries, for their input and review of this article.