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EEOC Issues Guidance Regarding Whether an Employer Can Mandate Employee Vaccination

Epidemiologist in protective suit, mask and glasses works with patient swabs to detect specific region of 2019-nCoV virus causing Covid-19 viral pneumonia. SARS-COV-2 pcr diagnostics kit concept.

On Wednesday, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding whether an employer may mandate that employees receive a COVID-19 vaccination, including employees with disabilities and those with objections to the vaccination due to a “sincerely held religious belief, practice, or observance” (SHRBPO), without violating federal labor law. 

The guidance provides that generally an employer likely can mandate an employee receive a COVID-19 vaccine when available, as the Americans with Disabilities Act allows an employer to implement “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” This requirement, the EEOC pointed out, could be centered around “a conclusion that there is a direct threat…that an unvaccinated individual will expose others to the virus at the worksite.” 

If an employer reaches such an aforementioned conclusion, the guidance states that employees without disabilities or religious objections must either become vaccinated, receive a reasonable accommodation from the employer (optional for the employer to provide for those without objections noted below), or consider leave under the Families First Coronavirus Response Act or Family and Medical Leave Act. If an employee cannot receive the vaccination due to disability or objection due to a SHRBPO, the employer must provide a reasonable accommodation for the employee to continue working. A reasonable accommodation, as defined by the EEOC, is any accommodation (e.g. teleworking) that would eliminate or reduce the risk that the unvaccinated employee could spread the virus to others at the worksite but not create an undue hardship —no significant difficulty or expense— for the employer. 

The guidance concludes by noting that if reasonable accommodation cannot be found for the employees with valid objections to an employer’s vaccination requirement, the employer can legally bar the employee from coming to work. The guidance provides, “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.”

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