Recently, the Equal Employment Opportunity Commission (EEOC) provided some much-anticipated guidance on an employer’s ability to require COVID-19 vaccinations and an employee’s ability to refuse such vaccination. Please note that the information provided below is not intended to be legal advice, but rather a summary of guidance provided by the EEOC.
While at this point it is unlikely the government will require vaccinations, employers may encourage and possibly require COVID-19 vaccinations if policies and practices comply with provisions of the American with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other workplace-related laws.
Employers who are considering requiring its employees to get a COVID-19 vaccine will need to develop a written policy on the matter. The policy should outline how the employer will comply with the ADA, Title VII, etc. It will also need to consider that employees may have some objections to being vaccinated and include guidelines on how employees should notify the employer of these objections and how those objections will be handled.
Yes, employers are permitted to implement mandatory vaccination policies under federal law. However, under the ADA, these particular policies must tread a fine line: an employer can have a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If a vaccination requirement screens out a worker with a disability, however, the employer must show that unvaccinated employees would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely or take a leave of absence.
Title VII requires an employer to accommodate an employee’s sincerely held religious belief, practice, or observance, unless it would cause an undue hardship on the business—an undue hardship being defined as an accommodation that has more than a “de minimis,” or very small cost or burden on the employer. Under Title VII, the definition of religion is broad and protects religious beliefs and practices that may be unfamiliar to the employer. Therefore, according to the EEOC, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If an employee requests a religious accommodation, and an 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.”
If a reasonable accommodation is not possible under the ADA or Title VII, it does not mean that employers may automatically terminate employees. Employers may need to consider physically excluding the employees from the workplace as a final accommodation. Employers will need to determine whether such employees have any additional protections under EEO laws or other federal, state, and local laws or regulations.
This topic will continue to evolve, and we believe there will be more guidance and clarity issued on the matter to help employers best navigate the current state of the workforce. We will continue to review updates from the CDC, EEOC and OSHA, so stay tuned for updates.