December 16, 2021 – On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued its first direct guidance for employers regarding COVID-19 vaccines approved or authorized by the Food and Drug Administration (FDA).

There are several key takeaways for employers under federal employment laws administered by the EEOC. They include the following:

• Mandating the vaccine and exceptions to the rule. Employers may require employees to take the COVID-19 vaccine, subject to certain legally protected exceptions for disability and sincerely held religious beliefs.

• The Americans with Disabilities Act (ADA) and Disability Exceptions. With respect to exceptions for disability, the ADA permits employers to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if this tends to screen out an individual with a disability (such as an employee who, for medical reasons, is unable to get the vaccine), the employer must show that an unvaccinated employee would pose a “direct threat” to the health and safety of the individual or others that cannot be eliminated by a reasonable accommodation (which may include remote work or a temporary leave of absence). Employers should also evaluate whether allowing unvaccinated employees to work under existing COVID protocols (masking, social distancing, etc.) is a viable option.

The EEOC further advises that employers should conduct an individualized assessment of four factors in determining whether or not 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,” the guidance states.

• Title VII and Religious Exceptions. Concerning religious objections, the EEOC opined that, 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 unless it would pose an undue hardship under Title VII, which has been defined by courts as more than a de minimis cost or burden on the employer. Such accommodations could include remote work or a leave of absence, among others. The EEOC reiterated its prior guidance that employers should normally assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief. However, at least one federal court has held that being an “anti-vaxxer” is not a religious belief. If there is no accommodation possible for an employee with a sincerely held religious objection to receiving the vaccine, the employer may exclude the employee from the workplace if it can establish undue hardship under Title VII standards.

• Documentation to Support Exception Request. Employers may generally request that the employee provide supporting documentation to support exception requests for a disability. Likewise, if the employer has an objective basis for questioning the religious nature or sincerity of a belief, the employer can request supporting documentation for the exception request.

• Excluding an Employee Where No Reasonable Accommodation Is Possible. If no reasonable accommodation is possible and the employee is unable (due to a disability) or unwilling (due to a sincerely held religious belief) to be vaccinated, the EEOC states that the employer may “exclude” the employee from the workplace, but this does not necessarily mean that the employer can automatically terminate the employee. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some employees may be entitled to telework or, if unable to be vaccinated for medical reasons, be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies. If an employee refuses to be vaccinated and does not meet the religious or disability exceptions, his or her at-will employment can be terminated as a result.

The full text of the guidance can be accessed here: 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=

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Because legal developments pertaining to COVID-19 are constantly evolving, we recommend that our clients call the Kullman Firm attorney(s) with whom they work for the most current guidance on these matters.