The EEOC has released long-awaited guidance about the COVID-19 vaccine and the applicability of various equal employment opportunity (“EEO”) laws, including the ADA, GINA, and Title VII, to an employer's policy of requiring its employees to receive the vaccine. The EEOC stressed that EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.
The EEOC’s guidance comes in the form of nine questions and answers regarding EEO laws and the COVID-19 vaccine. The complete guidance is available here (subsection K). Some of the key takeaways from the guidance are summarized below. Based on the EEOC’s guidance, an employer would be allowed to make COVID-19 vaccinations mandatory, subject to certain exceptions for disabilities and sincerely held religious beliefs.
Employee Unable to Receive COVID-19 Vaccination Due to Disability
The ADA allows an employer 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.”
If vaccination requirement screens out or tends to screen out an individual with a disability, 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.”
Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: 1) the duration of the risk; 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.
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.
If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee 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. Some workers may be entitled to telework or, if not, may be eligible to take leave under the FFCRA, under the FMLA, or under the employer’s policies.
Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).
Employee Unable to Receive COVID-19 Vaccination Due to Sincerely Held Religious Practice or Belief
Employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII.
Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer.
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.
No Reasonable Accommodation Available
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. 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 with questions are advised to consult with their legal counsel regarding specific questions or concerns. If you have any questions, or need assistance, please feel free to contact Jeremy D. Iosue or Jason T. Hartzell at (216) 651-0451.
This Employment Law Alert may provide an overview of specific federal and/or state laws and regulations. It is not intended to be, and should not be construed as, legal advice for any particular situation or individual.
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