EEOC Releases Vaccination Guidance

Last week, the EEOC – the federal agency that regulates workplace discrimination – updated its COVID guidance to discuss how the vaccines implicate workplace rights. Here are some key takeaways:

1. As long as you are not administering the vaccine yourself or hiring a third party to do so, requiring an employee to show proof of receipt of the vaccine is not a disability-related inquiry under the ADA.  Thus you do not need to show that it is job-related or consistent with business necessity to impose this requirement.
2. If an employee refuses to get the vaccine because of a disability, you can remove the employee from the workplace if he or she poses a direct threat to his or her health or safety or the health and safety of others that cannot be eliminated or reduced by reasonable accommodation that does not impose an undue hardship on the organization. This will be an involved inquiry and, even if you conclude that no reasonable accommodation exists removal from the workplace does not necessarily mean termination.  You will then need to see if the employee can be accommodated through telework, FFCRA leave, FMLA leave, and the like.
3. If an employee refuses to get the vaccine because of a “sincerely held religious belief, practice, or observance,” you must provide a reasonable accommodation unless it poses an undue hardship.  The EEOC warns that you should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  You may be entitled to request additional supporting information.  And as with employees refusing to vaccinate because of a disability, just because an employee cannot be accommodated, it does not mean that the employee should be terminated.  You will still need to determine if the employee can be accommodated through telework or otherwise.

Be safe and stay the course. And of course, let us know if we can help.

Wishing you peaceful holidays, Jack, Elizabeth and Jim