January 4, 2021
By: Kimberly Klein
On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance to include information about vaccinations in the workplace. The EEOC advises that employers can require workers to get vaccinated but may have to accommodate employees with disabilities or sincerely held religious beliefs.
Despite this, the EEOC warns employers that choose to vaccinate their workforce (or contract with someone to provide the vaccination) that some pre-vaccination screening questions could violate the Americans with Disability Act (“ADA”) if they elicit information about a disability. As a result, all such inquiries by employers must be “job-related and consistent with business necessity.” According to the EEOC, this standard would be met if the employer can show that it had a reasonable belief that the employee would pose a direct threat to the health or safety of the worker or others if the employee did not receive the vaccine.
To avoid running afoul of the ADA, employers who administer the test directly or indirectly can make the vaccine and questions voluntary. Alternatively, employers may require that the employee receive the vaccination from a third party who does not contract with the employer, such as a pharmacy or healthcare provider. If employees are vaccinated by a third-party, employers can require employees to show proof of receipt that they received the vaccine.
The guidance discusses two possible limitations on requiring employees to get vaccinated – employees with a disability and employees with sincerely held religious beliefs.
An individual who is unable to get vaccinated as a result of a disability can be excluded from the workplace only if that person poses a direct threat to the health or safety of him/herself or others. To determine whether a direct threat exists, employers must apply a four factor individualized assessment considering:
- The duration of the risk;
- The nature and severity of the potential harm;
- The likelihood that the potential harm will occur; and
- The imminence of the potential harm.
According to the EEOC, “A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”
The analysis does not end there, however. If the employer concludes that the employee does pose a direct threat, the employer must consider whether a reasonable accommodation can be provided that would eliminate or reduce the risk, absent undue hardship to the employer. Thus, employers must engage in interactive dialogue with employees and consider alternatives such as teleworking, relocating the employee to a more isolated area, or permitting the employee to take leave under applicable leave laws.
Similarly, employers must accommodate employees with sincerely held religious beliefs, absent undue hardship to the employer. Prior EEOC guidance has stated that the definition of religion is broad, and employers should “assume” that the employee’s request for a religious accommodation is based on a sincerely held belief.
Nevertheless, where an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief and no reasonable accommodation is possible, the employer may terminate the employee, provided no other law is implicated.
Moses & Singer LLP attorneys can help you navigate this process, including determining whether an employee poses a direct threat, a reasonable accommodation exists, or an employer will suffer an undue burden.