A question that is often asked lately is whether Georgia employers can legally require employees to receive the COVID-19 vaccine.
According to current state and federal case law, the answer is yes.
Private, Federal and State Policies Explained
In 1905, the Supreme Court of the United States decided the seminal case of “Jacobson v. Massachusetts.” In this case, the Supreme Court upheld the authority of the state to require residents to be vaccinated against smallpox. In that decision, Justice John Marshall Harlan wrote, “A community has the right to protect itself against an epidemic of disease which threatens the safety of its members.”
We can fast forward from 1905 to the May 28, 2021 decisions from the Equal Employment Opportunity Commission (“EEOC”) which have stated that employers can require employees to provide documented proof of vaccination. The EEOC has held that requiring such proof does not violate discrimination laws nor laws relating to an employee’s right to privacy under the Health Insurance Portability and Accountability Act (HIPAA). An employee who rejects this mandate may face disciplinary action, including a potential termination.
Following the EEOC’s grant of permission, many private employers throughout Georgia have instituted mandatory vaccination policies. Similarly, federal government employees working within Georgia have instituted a strict vaccinate mandate which requires all employees to be vaccinated on or before November 22, 2021.
County and state employers within Georgia have largely chosen not to require mandatory vaccinations from their employees. However, in September of 2021, Fulton County bucked the trend by instituting a mandatory “Vax or Test” policy as a condition of continued employment. This test requires employees submit either proof of vaccination or negative results from weekly COVID-19 tests. Should the Fulton County model provide successful, it is likely more state and county employers would follow suit.
Exemptions and Accommodations
If an employee objects to the vaccine mandate due to a disability or sincerely-held religious belief, employers must seek to provide reasonable accommodation according to the ADA (protections for individuals with disabilities) and Title VII (protections for religious beliefs) unless it poses an undue hardship on the employer. Prior to providing the accommodation, an employer may require the employee to provide proof of the necessity of the accommodation. Common accommodations include: (1) a face mask requirement, (2) social distancing requirements, (3) remote working, (4) and regular tests for COVID-19. Employers may legally terminate employees seeking vaccination exemptions if it would be an undue hardship for the employer to provide accommodations.
As the law currently stands in Georgia, employers have wide discretion to institute vaccination mandates. Then, employees may choose to comply or request accommodations on the limited bases of a disability or religious belief. On either side, the important factor to keep in mind is that the best path forward entails mutual respect and open dialogue.
For any questions or comments, contact Mary Trachian-Bradley at [email protected].