Archives for December 22, 2020

With COVID-19 vaccines now available, the question arises whether employers can require their employees to receive the vaccine as a condition of employment. On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued updated guidance, suggesting employers may require employees get the vaccine, however, several important caveats must be considered before implementing such a policy.

“If an employee cannot 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 the workplace,” the new guidance says. “This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.”

Disability accommodation: To comply with the American with Disabilities Act (“ADA”), when a disability-related issue prevents an employee from getting a COVID-19 vaccine, the EEOC said that employers must conduct a case-by-case analysis to figure out if that employee poses a “direct threat” to the health and safety of the workplace by being unvaccinated. Specifically, employers should conduct an individualized assessment of four factors in determining whether a direct threat exists:

1. the duration of the risk;
2. the nature and severity of the potential harm;
3. the likelihood that the potential harm will occur; and
4. the imminence of the potential harm.

A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk, so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms. Some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.

Religious exemption: Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act. Courts have defined “undue hardship” under Title VII as having more than a trivial or minor cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.

The EEOC and OSHA may issue further guidance. There may also be guidance from the Advisory Committee on Immunization Practices (“ACIP”), which is a committee within the CDC made up of medical and public health experts who develop recommendations on the use of vaccines in the United States. Many state and local governments rely on the ACIP’s recommendations in developing vaccine mandates, such as those for public schools.

The ACIP provides annual recommendations regarding flu vaccines and is likely to make recommendations regarding any COVID vaccine. Based on the ACIP’s guidance, it’s possible that states may mandate the COVID vaccine for certain categories of employees, such as essential workers.

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