With the arrival of COVID-19 vaccines, a common question is whether employers can require employees to get the COVID-19 vaccine once it is widely available. Today, the Equal Employment Opportunity Commission (EEOC) updated its guidelines regarding vaccinations in the workplace. The updated guidelines can be read here in Section K.
In general, employers can require employees to get vaccinated, but it is not without some limitations. Specifically, the Americans With Disabilities Act (ADA) and Title VII require employers to make reasonable accommodations based on an individual’s disability or sincerely held religious beliefs, practices or observances.
Under the ADA, if an employee discloses they have a disability that prevents them from receiving the vaccine an employer is required to engage in the interactive process and make a reasonable accommodation, unless doing so would create an undue hardship or result in a direct threat to the health and safety or the employee or others. Accordingly, if an employer chooses to require employees to receive a COVID-19 vaccine and an employee requests to not receive the vaccine due to a disability, the employer must engage in the interactive process to determine if not receiving the vaccine would be a reasonable accommodation. If an employer determines that exempting the employee from the vaccination would be an unreasonable accommodation or pose a direct threat to the safety of the employee or others, it should consider other accommodations such as working remotely.
Similarly, if an employee requests an exemption from the vaccine due to their sincerely held religious beliefs, Title VII would require the employer to consider whether such an accommodation would create an undue hardship for the organization. Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer.
According to the EEOC, “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. 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.”
The EEOC also confirmed that employers can require proof of vaccination. However, employers need to be sure to let employees know not to provide any other medical information beyond a simple confirmation from their healthcare provider or pharmacy that the employee received the vaccination in order to manage risk related to the ADA and the Genetic Information Non-Discrimination Act (GINA).
Employers should also consider other impacts beyond the law. For example, if requiring a vaccine, it should be done in a manner in which all employees have equal access to the vaccine. Employers should also consider associated costs, which could result in inequities amongst employees. Employers may also want to prioritize certain groups of employees such as those that are required to be in the physical workplace where the risk of spread may be greater than employees working remotely.
Before making any decisions regarding mandating a COVID-19 vaccination, employers should take careful consideration and seek advice.
Cascade will continue to monitor this issue and keep you updated once more becomes known in the upcoming weeks. Check our COVID-19 Resources page for up-to-date information.