COVID-19 Vaccinations and Your Employment

No, the vaccine is not required by the state government. 

However, employers may choose to implement mandatory vaccination policies, provided that such policies comply with federal, state, and local rules. However, your decision as to whether to get the COVID-19 vaccine is a personal one, and one that should be made after consulting with your health care provider. Read more about the COVID-19 Vaccine on the CDC’s website and the FDA’s website.

An employer that is implementing policies regarding mandatory vaccinations must follow the Americans with Disabilities Act (ADA). The ADA applies to private employers with 15 or more employees and to most government employers, employment agencies, and labor unions. The ADA may also apply to employers with 15 or less employees if that employer receives federal funds.

The ADA prohibits covered employers from discriminating against people with disabilities in the full range of employment-related activities. A mandatory vaccination policy may implicate provisions of the ADA, which has restrictions on when and how much medical information an employer may obtain from an applicant or employee.

Generally, yes. Employers may implement a mandatory vaccination policy as long as the policy is job-related and consistent with business necessity, and provides for exemptions based on an employee’s covered disability or an employee’s sincerely held religious beliefs. For the COVID-19 vaccine, personal conscience may also qualify one for an exemption. Employers are not generally required to accommodate secular or medical beliefs about vaccines. For more information on mandatory vaccination policies, read Section K of the EEOC’s Guidelines on the ADA and Vaccinations. In Texas, one can also submit a COVID-19 Vaccine Exemption Form. 

The CDC recommends that health care providers should ask certain questions before administering the vaccine to ensure there is no medical reason that would prevent a person from receiving the vaccination. Such pre-screening questions, if asked by the employer, are likely to elicit information that are “disability-related” under the ADA. Indeed, the ADA has restrictions on when and how much medical information an employer may obtain from an applicant or employee. 

Therefore, if an employer requires you to receive a vaccination that is administered by your employer, the employer must show that these disability-related pre-screening questions are “job-related and consistent with business necessity.” However, there are two exceptions where the employer does not have to satisfy the “job-related and consistent with business necessity” standard. 

First is when your employer offers vaccination to its employees on a voluntary basis. If vaccination is voluntary, then the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine, but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions. 

Second, if an employee receives an employer-required vaccination from a third party who does not have a contract with the employer, such as a pharmacy like CVS or Walgreens, or other health care provider, the “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-screening questions for the vaccination. Such questions will likely be asked by the pharmacy or health care provider administering the vaccination. However, the pharmacy or health care provider may choose not to administer the vaccine should the employee decline to answer the pre-screening medical questions. Your answers to any pre-screening medical questions, including your refusal to answer any such questions, will not be shared with the employer. Privacy laws preclude health care providers from disclosing private and confidential medical information to anyone without authorization. Moreover, any medical information shared by you to your employer is also protected by the same privacy laws and other federal, state, and local laws.

The EEOC has stated that administering the COVID-19 vaccine to employees or requiring proof of vaccination from employees does not implicate Title II of the Genetic Information Nondiscrimination Act (GINA). However, as stated above, pre-vaccination medical screening questions are likely to elicit information about not only a person’s disabilities, but also their genetic information, such as family members’ medical histories, which would violate GINA. 

Under the ADA, employers are permitted to have a “qualification standard” that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Since a vaccination requirement may screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 

In other words, if you’re unable to get vaccinated due to a disability, and the employer concludes that you would pose a direct threat to the health or safety of yourself or others, then your employer should determine whether you may be entitled to a reasonable accommodation such as allowing you to perform your job remotely. This is the same type of analysis that employers make when physically excluding employees from a worksite due to current COVID-19 diagnosis or symptom. While some workers are entitled to work from home, others may not be able to do so. You should ask your employer what you need to do and if a reasonable accommodation can be made for you. 

If your employer cannot provide a reasonable accommodation because it would be too difficult or expensive (i.e., unduly burdensome), then your employer may exclude you from physically entering the workplace. However, the employer may not automatically terminate your employment. Those who are unable to work remotely may be eligible to take leave under the Families First Coronavirus Response Act (FFCRA), under the FMLA, or under the employer’s policies such as paid or unpaid leave.

In Texas, one can also submit a COVID-19 Vaccine Exemption Form.

Once you notify an employer that your sincerely held religious belief, practice, or observance prevents you from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless such an accommodation would pose an undue hardship under Title VII of the Civil Rights Act. 

In general, employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious held belief. If, however, an employee requests a religious accommodation, and the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

In Texas, one can also submit a COVID-19 Vaccine Exemption Form. 

If you are unable to get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from physically entering the workplace. This doesn’t mean that the employer can automatically terminate the worker. Employers will need to determine if there are other rights that apply under the EEO laws, or other federal, state, or local authorities. 

In Texas, one can also submit a COVID-19 Vaccine Exemption Form.

Yes, your employer may require proof of vaccination before you are permitted to return to work. Of course, any requests by your employer must be job-related and consistent with business necessity. In Texas, one can also submit a COVID-19 Vaccine Exemption Form.  Your employer may not require your private genetic information as part of the proof.

If you choose to receive the COVID-19 vaccine, you should receive a vaccination card, which can serve as proof of your vaccine. The main purpose of the vaccination card is to allow you to keep track of which vaccine you received, the dosage you received, and the dates of each dosage. It will also serve as a good reminder of when you will need to get the second dosage, which is typically three weeks from the date of the first dosage. 

It is good practice for individuals to keep track of their immunization records. The CDC has information on Keeping Track of Your Immunization Record.

Governor Abbot issued an executive order that allows employees to opt out of an employer-mandated COVID-19 vaccine for medical, religious, or conscience reasons. Violations of this order are punishable by fine. However, it is unclear if this order is enforceable where it might conflict with federal law.

Disability Rights Texas has compiled additional resources on the vaccine here.

Disability Rights Texas is now assisting Texans with disabilities who need information about the vaccine or are having trouble getting it through our Vaccine Access Program. Call 1-800-880-8401 Monday - Friday between 9:00 and 4:00, or email vaccine@DRTx.org.