Help Desk FAQ: Can Nonprofits Require COVID-19 Vaccines?
Our Member Help Desk has received more and more questions from nonprofits seeking guidance on how to return to the office and in-person services and programs safely, with many of the questions concerning how to handle communications, policies, and practices about vaccines. We reached out to our Friends at Verrill with the most common vaccine related questions we are hearing. Here’s what Tawny Alvarez, a partner at Verrill, had to say:
Can we require employees to be vaccinated to return to in-person work/services?
In Maine, private companies and non-profits can require employees to be vaccinated to return to in-person work/services but they may have to make exceptions/accommodations for employees who are unable to be vaccinated as a result of a religious belief and/or a medical condition.
What about volunteers and/or clients?
The Maine Human Rights Act and Title III of the ADA address the activities that public accommodations must take when dealing with anti-discrimination policies/practices. Under Title III, a public accommodation cannot discriminate against any individual on the basis of disability “in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any places of public accommodation.” Many non-profits would meet the definition of a public accommodation including museums, places of recreation, places of education, social service centers. The only way an organization can limit an individual with a disability’s “full enjoyment” of services, would be if the individual “poses a direct threat to the health or safety of others.” Accordingly, if a client is refusing to obtain the vaccine because of a disability, you would have to find a way to provide the client with full and equal enjoyment of your service in another way, or you would risk a claim of violation of Title III.
Similarly, Title II of the Civil Rights Act provides that an individual is “entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation,” without regard to religion. Accordingly, similarly, if the client is refusing immunization based on a religious belief, you would have to provide an accommodation.
Volunteers are not employees and also are not seeking to use a good or service of an organization, and accordingly there would not be a Maine statute that would limit the ability to restrict individuals from volunteering if they are unvaccinated. At the same time, however, collecting information on vaccination status—which would likely be necessary in order to institute such a policy—is something that could be viewed as creating an employer/employee relationship when viewed in relation to other factors related to the volunteer’s role with the organization.
If we do require vaccinations, what do we need to keep in mind?
There are different rules related to whether you offer vaccinations on site, or simply allow employees to choose to be vaccinated and set up their appointments themselves. There are fewer restrictions if the employer requires the vaccine but does not assist the employees in making the appointment and/or hosting a vaccine clinic on site.
Employers need to have an accommodation policy in place to accommodate individuals who are unable to be vaccinated as a result of a health condition/disability and/or for religious reasons. The policy should identify who the individual should contact to begin the accommodation process and explain any additional information the employer may seek.
Questions you will need to consider:
- What is the timeline in which you will require individuals to be fully vaccinated?
- What process will you undertake to learn whether an employee is vaccinated?
- Will you require proof of vaccination status?
- How will you secure information concerning vaccination status? (While HIPAA is only applicable to a very small number of non-profits who are in the medical services field, you still have an obligation as an employer to maintain the confidentiality of this information).
- If an individual refuses a vaccination for a reason un-related to religious beliefs and/or a health condition what will the consequence be? Are you prepared to terminate these individuals?
If we do not require employees to be vaccinated…
- Can (and should) we ask employees about their vaccination status?
If you are going to have different policies in place for vaccinated versus unvaccinated individuals then you will need to ask employees about their vaccination status. This is permissible. You can ask employees about their vaccination status if it is related to their work and/or a company policy. If your organization does not intend to do anything with the information then you should not ask about employee’s status. Certain policies that may be different include masking policies, requirements to quarantine after international travel, social distancing, etc.
- What about clients, volunteers, vendors, etc.?
I would not recommend asking clients, volunteers, or third parties about their status unless you require different masking or social distancing protocols for those individuals. If that is the case, I suggest using signage to identify your policy but not specifically asking third-parties as to their status. If the vendor is one that you have a long-term relationship with and/or a contractual relationship with, you can request an amendment to the contract which provides that on-site providers will be vaccinated and if they are not vaccinated will wear a mask and social distance. You would not have this ability with volunteers and likely would not have it with clients, however, if the organization has a contractual arrangement with clients they can consider including this language.
- Are there any legal limits on what we can do to promote vaccinations to our employees and stakeholders?
Private organizations should make sure that their tactics are not coercive. They can offer incentives (both rewards and penalties) for employees and stakeholders, but they cannot be coercive. Examples of coercive behavior are not provided by the EEOC, nor is the term defined, but think of it as a benefit that no person could refuse, or would require the giving up of free will.
- What policies should we have in place before returning to in-person work/services?
Companies should maintain all the policies they had pre-pandemic, such as anti-harassment, anti-discrimination, etc. Companies should make sure that their reasonable accommodation policies are up to date and reasonably communicated to others. Additionally, some form of COVID-19 related policies should still exist including symptom check, international travel policies, and social distancing and masking (whether for everyone, no one, or only unvaccinated individuals).
Tawny Alvarez, Partner, Verrill Law
Tawny prides herself on helping clients comply with the law while simultaneously creating an amazing place to work. She centers her practice on the understanding that the employment landscape is ever-changing and organizations do not have the time or resources to keep abreast of all these changes—from pandemic policies and employee’s marijuana use within the work environment to the effect of social networking in the workplace, including the effect of the use of mobile devices on wage and hour issues. In this evolving landscape, Tawny recognizes that for companies to remain profitable and successful they must be proactive, not merely reactive, to these issues.