CAN EMPLOYERS IN HAWAI‘I REQUIRE THEIR EMPLOYEES TO RECEIVE THE COVID-19 VACCINE?

The spike in COVID-19 cases and the spread of the Delta variant have led companies to consider or impose COVID-19 vaccine mandates. Disney, Walmart, Facebook, and Google are among the companies requiring certain workers to get vaccinated before returning to work. Locally, Bank of Hawaii, Hawaiian Electric Company, Hawaiian Airlines, and most major hospitals have imposed vaccine requirements on their employees. Federal and state governments are also implementing COVID-19 vaccine policies. In July, President Joe Biden announced that federal civilian workers and on-site federal contractors will be required to demonstrate proof of vaccination or agree to recurrent testing and safety protocols. Similarly, Governor David Y. Ige announced that all state workers would need to be vaccinated or undergo weekly testing. The prevalence of these vaccine mandates begs the question: Can employers legally require their employees to obtain the COVID-19 vaccine? The short answer to this question is likely yes, but with certain limitations.

The Equal Employment Opportunity Commission (EEOC) has issued guidance regarding whether employers can require vaccines for employees.1 Although the guidance does not carry the force of law, it provides welcomed clarity for employers during a chaotic time. The EEOC guidance notes that federal laws “do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions” of Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA).2 In other words, an employer can generally require employees who enter the workplace to get vaccinated. However, federal laws, specifically Title VII and the ADA, require an employer to provide reasonable accommodations for employees who because of medical reasons or sincerely held religious beliefs cannot receive the vaccine. The accommodation must be provided unless it poses a direct threat to the health and safety of others or imposes an undue hardship on the employer. Examples of possible accommodations include having an unvaccinated person wear a face mask at work, or socially distance from other coworkers or nonemployees; obtain occasional COVID-19 tests, or be allowed to telework.