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WITH FEW EXCEPTIONS, EMPLOYERS CAN REQUIRE EMPLOYEES TO GET THE COVID-19 VACCINE

As COVID-19 vaccinations are approved by the Federal Food and Drug Administration (FDA), many employees are questioning whether their employer can force them to get the vaccine as part of their return-to-work plans.  With some exceptions, the answer is yes, according to recently published guidance from the Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal laws against job discrimination and harassment.

On December 16, 2020, the EEOC issued the first direct guidance on whether employers can require employees to get the COVID-19 vaccines recently approved or authorized by the FDA.  Below is are some key take-aways from the EEOC’s new guidance include:

Vaccination Requirements and Exceptions.  Employers may require employees to get a COVID-19 vaccine, subject to certain legally protected exceptions for disability and sincerely held religious beliefs.

 Disability Exception.  The Americans with Disabilities Act (ADA) permits employers to require an employee “not pose a direct threat to the health or safety of individuals in the workplace.” However, if this requirement tends to screen out an individual or group of individuals with a disability, then the employer must show an unvaccinated worker would pose a “direct threat” to the health and safety of the individual or others which cannot be eliminated by a reasonable accommodation.  “Reasonable accommodations” may include remote work or a temporary leave of absence.

 Religious Beliefs Exception.  Under Title VII of the Civil Rights Act, employers must provide reasonable accommodation for worker’s sincerely held religious belief, practice, or observance, unless it would pose “more than a de minimis cost or burden to the employer.”

Documentation to Support an Exception Request. Employers may generally request that workers provide documentation to support their disability or religious exception requests.

Excluding an Unvaccinated Worker from Returning to Work. If an employer cannot make a reasonable accommodation and the worker cannot be vaccinated, then the employer may “exclude” the worker from the workplace.  This does not necessarily mean that the employer can automatically terminate the worker.

Pre-Vaccination Medical Screening Questions. If an employer requires employees to get a vaccine before returning to work, or contracts with a vendor to provide the vaccine, then the ADA’s disability-related inquiry standards apply to the pre-vaccination medical screening questions.  That is, the screening questions must be job-related and consistent with business necessity.  If an employer makes vaccinations voluntary, or if the worker is vaccinated by a third party not contracted by the employer, then these ADA restrictions do not apply.

Proof of Vaccination Requirements. Employers may ask employees to show proof of receiving a COVID-19 vaccination, which is not prohibited under the ADA.  However, employers should warn employees not to provide medical information as part of their proof of vaccination.

Our office represents employees in various employment related issues, including discrimination under the ADA based on disability or religious belief.  If you would like to discuss your potential matter,  Click here to contact us.

See the complete EEOC guidance here:

What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov)

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