Can your Employer Mandate the COVID vaccine? The EEOC weighs in.
As the newly released Covid 19 vaccine makes its way throughout the United States, the question of whether employers could mandate whether an employee must vaccinate has been somewhat answered. The government, through the Equal Employment Opportunity Commission (“EEOC”), has stated that employers can indeed mandate that employees comply with the request to vaccinate. The EEOC reasoned that the employer’s entitlement to guarantee a safe workplace comes from the American’s With Disabilities Act (“ADA”), that stipulates that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” [1]
Although the ADA sets limitations on the employer’s ability to compel employees to receive medical exams, the EEOC’s recent declaration has made it clear that such a vaccination does not fall into the category of a medical exam. This provision basically ensures that a vast majority of employees will be required to comply with the request to vaccinate, because such a request is entirely in keeping with the Employer’s responsibility to ensure a safe and productive work environment.
The mandatory nature of the current process brings to light several potential issues with employees who are unwilling to get themselves vaccinated for a variety of reasons, and their potential remedies through the ADA. As stated above, a vast majority of employees will be required to comply with a request to vaccinate for Covid-19. However, there are still some minor exceptions for individuals in particular categories. An employee with a disability which would prevent vaccination, or a sincerely held religious belief which would prevent vaccination would be exempt from having to comply with the required vaccination. Under the ADA and Title VII respectively, an employee can request an accommodation for either a disability that would prevent vaccination or an exemption based on their personal religious beliefs. In instances where an employee falls into one of these two categories, an employer must make a reasonable accommodation for them that will likely take the form of either working from home or unpaid leave.
It is important to note that even with the accommodations in place, an unvaccinated individual who poses a threat to themselves or others can be physically barred from entering the workplace. It is also apparent that an employee who is required to be physically present at the workplace, and subsequently refuses to take the vaccine and becomes a threat to others can be terminated. Employers dealing with this current crisis should keep the EEOC guidelines and provisions of the ADA and Title VII in mind when they implement their vaccination protocols, in order to ensure compliance with the law and facilitate a safe and productive work environment.
If you or your H.R. department have any questions concerning the implementation of the Covid-19 vaccination in your workplace or drafting policies concerning same, please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at [email protected]
Thank you to Joel Thomas, JD for his assistance with this post.
[1] U.S. Employment Opportunity Commission, What You Should Know About Covid-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, (2020), https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=
