Are You Considering Mandating COVID-19 Vaccinations at the Workplace?

               Although it will be months before a COVID-19 vaccine is readily available to all Americans, the news of vaccine distribution and the desire to return to some sort of normalcy in the workplace may be encouraging employers to consider implementing vaccination policies.  In response, the U.S. Equal Employment Opportunity Commission recently issued guidance to employers considering COVID-19 vaccination programs for their employees as related to various equal employment opportunity laws, including the ADA and the Rehabilitation Act, GINA, and Title VII of the Civil Rights Act of 1964.

                The EEOC guidance does not directly provide that mandatory vaccination policies are lawful, but provides guidance on how an employer should respond to requests from employees who cannot or refuse to obtain a vaccination.  This framework suggests that requiring a COVID-19 vaccination as a condition to returning to the workplace is not per se unlawful, but employers must ensure certain conditions are met.  At a minimum, employers are obligated to provide accommodations to employees with religious objections to vaccines, pregnant workers, and employees who have disabilities that may prevent them from obtaining a vaccination.  

                The EEOC’s guidance suggests that an employer may require vaccination as a requirement for returning to the workplace.  However, before an employer may exclude an employee from the workplace, “the employer must show that an unvaccinated employee would pose a direct threat due to a 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 EEOC provides four factors to consider when determining whether a direct threat exists, including (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  If the employer determines an unvaccinated employee is a direct threat, the EEOC provides that the employer cannot exclude the employee from the workplace “unless there is no way to provide a reasonable accommodation that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.” 

                The Americans with Disabilities Act requires employers to provide a reasonable accommodation to any employee whose disability prevents them from being vaccinated, unless doing so is an “undue hardship.”  “Undue hardship” is defined under the ADA as “significant difficulty or expense.”  An employer must consider the nature of its workforce and the employee’s particular position in evaluating accommodation options.  The employer should engage in an interactive process with the employee in determining a reasonable accommodation. 

                Similarly, employees who report a sincere religious belief prevents them from being vaccinated should be accommodated unless providing such an accommodation is an “undue hardship” as provided under Title VII.  In this situation, the “undue hardship” standard requires that the employer show that providing an accommodation imposes “more than a de minimis cost or burden on the employer.”  This standard is a less rigorous burden than under the ADA.  However, the employer should still engage in the interactive fact-based process.

                While the Covid-19 vaccine availability continues to evolve, it may be important for employers to begin considering options for revising its policies.  Our team is ready to assist you in making an informed decision as to whether your business should mandate or simply encourage your employees to receive the Covid-19 vaccine.


By: Betsy Huffman