ATTENTION: ALL EMPLOYERS
CAN EMPLOYERS REQUIRE ITS EMPLOYEES TO GET A COVID-19 VACCINE?
Yes, says the EEOC (with important exceptions)
On the heels of the first COVID-19 vaccines’ approval by the Federal and Drug Administration, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its previously published COVID-related guidance to address how employers should handle related workplace issues. While the guidance, issued on December 16, 2020, does not affirmatively state that the EEOC “blesses” mandatory vaccination policies, implicit in the EEOC’s guidance is that such policies are legal – but that employers must tread carefully to ensure they do not violate other laws. This e-alert is intended to help employers decide whether a mandatory vaccination policy is appropriate and to assist employers in preparing for potential obstacles.
Importantly, employers should be prepared that employees may object to getting the vaccine for various reasons – disabilities, religious reasons, potential side effects or just a preference not to be vaccinated. While the EEOC guidance only addresses some of these considerations, we have set forth the below considerations in all of these areas.
If an employee raises a disability-related objection to a mandatory vaccine policy, the employer can:
Finally, and perhaps most importantly, an employee who is deemed to be a direct threat can only be excluded if there is no way to provide him/her a reasonable accommodation (absent undue hardship) to eliminate or reduce the threat. For example, can this employee work from home or farther apart from others who received the vaccine? The EEOC warns that even if there is a direct threat that cannot be reduced to an acceptable level, “this does not mean the employer may automatically terminate the worker.” (Emphasis added.) Instead, “[e]mployers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.” This is why employers must proceed carefully and seek legal counsel to navigate these situations.
According to the EEOC guidance, if an employer requires vaccinations but is then notified that an employee’s sincerely held religious belief, practice or observance prevents the employee from receiving the vaccination, the employer must proceed as follows:
What should employers do if they want to require the vaccine, but employees object on other grounds that are not based on a disability or religious reason? While the EEOC does not cover these scenarios, employers should consider a number of issues:
OTHER IMPORTANT TAKEAWAYS FROM THE EEOC GUIDANCE:
Finally, the EEOC covered a few other notable points in its December 16th guidance that are important to highlight:
As employers can see, there are a multitude of legal landmines in this area. We expect that the EEOC’s guidance will be updated as further scenarios relating to the vaccine play out, and we will provide additional information as appropriate.
If you have any questions relating to this eAlert or any other COVID-19 issue, please contact NFC’s COVID-19 Response Team as we are closely monitoring the rapidly changing legal landscape relating to this global pandemic. Please feel free to reach out to the NFC Attorney with whom you typically work or call us directly.
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