Employers Can Keep Unvaccinated Employees From The Workplace, EEOC Says

December 20, 2020

With the initial doses of COVID-19 vaccines being administered and additional vaccines getting the green light,

the U.S. Equal Employment Opportunity Commission (EEOC) says that employers have the right to require workers to be immunized before they return to the workplace.

The wherewithal to mandate a required vaccination is part of new guidance from the EEOC called “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” In that guidance, the agency said that employers are required to ensure that the workplace is safe to the point where “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”

The EEOC suggests employers use a four-factor approach 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.

The ifs, and’s, or buts

Government guidance usually comes with a hefty supply of caveats, and the EEOC’s latest direction has its fair share.

Here are some of the highlights you should be aware of.

Are there exemptions on who has to be vaccinated? In the agency’s point of view, not all employees have to get vaccinated.

Employees exempted from the requirement include someone who has a “sincerely held” religious belief, practice, or observance that prevents them from getting inoculated, as well as someone with a disability.

When it comes to workers with a disability, the Americans with Disabilities Act (ADA) puts limitations on an employer’s ability to require employees to get a medical exam.

However, the EEOC says that getting vaccinated is not the same as getting a medical exam and, therefore, requiring employees to get a COVID-19 shot does not, in its estimation, violate the ADA.

Can an employee request accommodation? The answer is “yes” if the request is “reasonable,” says the EEOC.

It also says that an employer has the discretion to choose an effective accommodation as long as it doesn’t result in undue hardship. An example of a “reasonable” request would be allowing a worker to telework.

According to Helen Rella, a workplace attorney at Wilk Auslander, the big “however” as it refers to accommodations is this: “If no possible accommodation can be made and the employee’s job requires that they be in the physical workplace — and they pose a direct threat to the safety of the workplace or others — that yes, they could be terminated,” Rella said in comments to CBS News and Consumer Affairs.

Can an employee be fired for refusing to be vaccinated? Here the answer is “no.” In the EEOC’s words, “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.”

The sticky part of that judgment is that an employer still needs 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,” the agency said.

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