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COVID-19 UPDATE: EEOC Guidance on Vaccinations in the Workplace

12.22.2020 Written by Kathryn 'Katie' Cordell

The U.S. Equal Opportunity Commission (EEOC) has recently issued updated guidance addressing COVID-19 vaccinations in the workplace. A summary of the important points is below. Please contact your Katz Korin Cunningham attorney for guidance on your individual matter.

Can employers require employees to get vaccinated against Covid-19? Yes. Now that the vaccine is available (albeit on a limited basis), employers can choose to adopt mandatory vaccination policies that require employees to get vaccinated as a condition of entering the workplace. However, employers must attempt to accommodate those employees who decline or refuse the vaccine due to disabilities or religious beliefs.

What steps should an employer take if the employee refuses or declines the COVID-19 vaccination due to disability? The EEOC has indicated that 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.” 29 C.F.R. 1630.2(r). Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: 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. 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. It is important to note that, if an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk, so the unvaccinated employee does not pose a direct threat. Reasonable accommodations could include enforcing infection control policies, such as mask-wearing and social distancing. If the employer determines that there is no way to reduce the threat through accommodations, employee can be excluded from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. Some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.

What if the employee refuses or declines the vaccine because of a sincerely held religious practice or belief? Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, 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. EEOC guidance explains that 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 employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. Again, this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

Employers should review this guidance and consider contacting legal counsel if faced with a vaccination exemption request.


The contents of this document are for general information purposes only. The information is not intended to, and does not, constitute legal counsel, advice, or opinion on any specific facts or circumstances. Information contained in this article is not a substitute for the professional judgment of an attorney and you are encouraged to consult your own attorney on any specific questions you might have concerning your specific situation. This article may constitute advertising materials in some jurisdictions. The information in this white paper is current at the time it was published but due to the rapidly changing situation, we recommend that you check with the agencies or our team of attorneys for the most up-to-date guidelines and information.

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