To help employers navigate health and safety guidelines, the U.S. Equal Employment Opportunity Commission continues to update guidance that aims to answer common questions about what a company can and cannot do. In December, the agency updated its guidelines to include information about the COVID-19 vaccine.
“It talks about if you mandate a vaccine, here are the things you need to consider,” said Arthur Wolfson, a partner with Fisher Phillips in Pittsburgh.
Based on the most recent update, most lawyers conclude that businesses can require the vaccine as long as they provide certain exemptions, including for medical reasons under the Americans With Disabilities Act and religious beliefs under Title VII of the Civil Rights Act.
Here’s some of what the guidance lays out:
Question: If an employer requires vaccinations, how should it respond to an employee who indicates they are unable to receive the vaccine because of a disability?
Answer: In short, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
To determine whether a direct threat exists, employers should assess four factors: 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.
If the employer determines an unvaccinated individual would pose a direct threat, it still cannot exclude the employee from the workplace or take any other action — unless there is no way to provide a reasonable accommodation. Some workers may be entitled to telework or be eligible for leave under the Families First Coronavirus Response Act.
When determining a reasonable accommodation, employers should also consider the prevalence in the workplace of employees who have already received a COVID-19 vaccination and the amount of contact with others.
It is unlawful to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation.
Question: Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?
Answer: No. But some questions, like asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the Americans With Disabilities Act standard that the inquiries be “job-related and consistent with business necessity.”
If an employer does require employees to provide proof of vaccination, the employer may want to warn workers to not provide any medical information as part of the proof.
Question: If an employer requires vaccinations, how should it respond to employees who indicate they are unable to receive a vaccination because of a sincerely held religious belief?
Answer: The employer must provide a reasonable accommodation for the religious belief, practice or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.
Because the definition of religion is broad and protects beliefs, practices and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employees’ request for religious accommodation is based on a sincerely held religious belief.
The employer can request additional supporting information if it has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance.
Question: What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?
Answer: 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 whether other rights apply.
Lauren Rosenblatt: lrosenblatt@post-gazette.com, 412-263-1565
First Published: January 24, 2021, 12:00 p.m.