Today, the Equal EOC issued guidelines regarding vaccinations in the workplace in response to the COVID-19 pandemic. Highlights from the guidance include the following:
- The federal anti-discrimination laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act. An employer may require the employee to provide proof of vaccination. This information is confidential medical information and must be treated as such under the ADA.
- Employees who do not get vaccinated because of a disability, a sincerely held religious belief, or pregnancy may be entitled to a reasonable accommodation if such accommodation does not impose an undue hardship on the company's operations. Such may include having the employee wear a face mask, social distance from customers and co-workers, work a modified shift, be periodically tested for COVID 19, be given the opportunity to telework, or accept reassignment.
- An employer may require an employee to be vaccinated if the employee poses a direct threat in the workplace (because of the employee is not vaccinated) and there is no reasonable accommodation which would reduce or eliminate the threat.
- In determining whether an employee poses a direct threat in the workplace if not vaccinated, an employer must consider: (1) the duration of the risk posed by the employee; (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.
- The determination that a particular employee poses a direct threat in the workplace should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. This may include, for example, the level of community spread at the time of the employer's assessment. Statements from the CDC provide an important source of current medical knowledge about COVID-19, and the employee's health care provider, with the employee's consent, also may provide useful information about the employee. Additionally, the assessment of direct threat should take account of the type of work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing.
- An employer that creates a COVID-19 vaccination policy requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability, religious belief, or pregnancy on an individualized basis.
- In general, an employer should not question whether an employee has a sincerely held religious belief. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer may request additional supporting information.
- Employers may provide incentives (both rewards and penalties) for employees to voluntarily receive the vaccine and/or provide proof of vaccination.
Originally published 28 May 2021 .
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