Employer Mandated COVID-19 Vaccination

December 29, 2020


On December 16, 2020, the Equal Opportunity Employment Commission (“EEOC”) released Q&A guidance on employer mandated vaccination policies. The guidance provides that mandatory vaccination policies are permissible under the laws enforced by the EEOC, but employers must still comply with the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII). Such compliance may require employers to provide a reasonable accommodation, i.e., to make an exception to the vaccination mandate based on the employee’s disability and/or religious beliefs. The EEOC issued similar guidance in the past concerning employer mandated influenza vaccinations.

According to the EEOC’s latest guidance, the ADA permits employers to establish safety-based qualification standards, so that employees will not “pose a direct threat to the health or safety of individuals in the workplace.” For a mandatory vaccination policy to meet this standard, the employer would need to establish that the presence of an unvaccinated employee in the workplace would pose a “direct threat” due to the “significant risk of substantial harm to the health or safety of individuals in the workplace.” If an employer determines that an unvaccinated employee would pose a “direct threat” of harm to others, under the ADA, an employee may seek a reasonable accommodation, e.g., working remotely from home.

Employers should carefully review each request and evaluate whether the accommodation sought would alleviate the threat of harm. An employer cannot exclude the employee from the workplace—or take any other adverse employment action—unless there is no way to provide a reasonable accommodation that would reduce the risk of direct threat, absent some undue hardship. However, undue hardship may be a challenging standard for some employers.

Similarly, Title VII prohibits taking an adverse employment action against an employee based on the employee’s sincerely held religious beliefs. Once an employer is on notice of an employee’s sincerely held religious opposition to vaccination, the employer must provide a reasonable accommodation, unless doing so would result in an undue hardship for the employer’s business. However, unlike ADA cases, in religious discrimination cases, an accommodation that would result in more than de minimis cost or burden on the employer is considered an undue hardship, and is not legally required.
The EEOC guidance also emphasizes that managers and supervisors responsible for communicating with employees about compliance with a vaccination policy should know how to recognize an accommodation request, and should know how to respond appropriately.

With regard to mandatory COVID-19 vaccination policies, navigating the concepts of “reasonable accommodation,” “direct threat of harm,” “undue hardship,” and “de minimis cost” may not be easy. One size does not fit all; balancing these legal considerations will require making judgments based on the particular facts, which will vary greatly, depending on the nature of the employer’s business and operations.

If you have questions or need assistance implementing your company’s vaccination policy, please contact a member of our Labor & Employment Law Practice Group.

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