Do you want to require your employees to get the COVID-19 Vaccine to be entitled to work at your place of business? Are your employees subject to the federal employment laws? If they are, you need to review this article. If they are not, you need to check the state law requirements and options available to you as an employer.
Now that vaccines will be made available to you and your workforce to hopefully protect them against contracting COVID-19 an employer has to decide whether it should require employees to be vaccinated. On Wednesday, December 16, the federal Equal Employment Opportunity Commission (“EEOC”) updated its Technical Assistance Questions and Answers regarding the application of various laws to COVID-19 vaccination requirements. While this EEOC guidance provides welcome clarification to employers, determination of the appropriate path forward requires employers to perform a multi-layer analysis. Remember, this is only the EEOC’s Guidance; it is not the law. It is only guidance about how the EEOC will interpret the several laws impacted by this pandemic. A link to the Guidance is attached.
The EEOC guidance indicates that employers can require their workers to get a COVID-19 vaccine without violating key federal anti-discrimination laws so long as they can demonstrate that employees would create “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
The guidance reflects that employers that require the COVID-19 vaccine must consider reasonable accommodations for employees with disabilities. If an employee advises that they cannot be vaccinated because of a disability, the employer must determine whether it can provide a reasonable accommodation to that employee, without undue hardship, that would eliminate or reduce the safety risk. This process involves engaging in an interactive process with any such employee to identify options that do not result in significant difficulty or expense to the employer. In making this determination, employers should consider the number of employees who have already received the vaccination, the requesting employee’s interaction with coworkers and clients, the rate of vaccination in the community, and the requesting employee’s amount of contact with others whose vaccination status is unknown, keeping in mind that it is unlawful to disclose that an employee is receiving a reasonable accommodation.
The guidance further reflects that employers must consider providing reasonable accommodations for employees who state that their sincerely held religious belief, practice, or observance prevents them from getting vaccinated and must provide such an accommodation unless it would pose an undue hardship to the employer. Because the legal definition of religion in this context is broad and protects beliefs, practices, and observances with which an employer may be unfamiliar, the EEOC guidance provides that an employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief although it may request additional supporting information if the employer has an objective basis for doing so.
If an employee cannot get vaccinated for COVID-19 because of a disability or a sincerely held religious belief, practice, or observance, and no reasonable accommodation is possible, the EEOC advises that it would be lawful for the employer to exclude the employee from the workplace. Be careful in this analysis and seek professional help in making these determinations.
The EEOC also indicated in the Guidance that employers may lawfully require employees to prove they have received the COVID-19 vaccine without running afoul of any federal laws, with the proviso that employers need to remember that follow-up questions, such as asking why an employee has not received the vaccination, must meet the ADA standard of being “job-related and consistent with business necessity.”
In the process of making the determinations of what is in the best interest of the employer and its workforce, document the decision-making process and consult with your professional advisors about the care that should be taken in reaching decisions. Reasonable accommodation issues are always decided on an individualized basis, while policy decisions are made on a generalized basis to avoid discrimination claims.
Note that OSHA has also provided recommendations for maintaining a sound workplace to prevent or minimize the risks that your workforce will develop COVID-19. Some of the recommendations may be useful to you as an employer depending on the nature and configuration of your workplace environment and your staff. Review them as updated at the OSHA website.