The EEOC recently announced that federal anti-discrimination laws do not prevent employers from requiring all employees who physically enter their workplace to have received the COVID-19 vaccination.
However, employers are still required to comply with the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964. What does this mean?
Disability Accommodation
If an employee is unable to take the vaccine due to an actual disability, the employer must determine if the refusal poses a “direct threat to the health or safety of individuals in the workplace.” The EEOC has defined “direct threat” as a “significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation.”
The EEOC has offered guidance to employers when making this analysis, and has indicated that employers should consider the following 4 factors:
- The duration of the risk
- The nature and severity of the potential harm
- The likelihood that the potential harm will occur
- The imminence of the potential harm
If, after considering these factors, it is determined that an employee who cannot be vaccinated poses a direct threat to the workplace, the employer must then consider whether a reasonable accommodation can be made, such as allowing the employee to work remotely, socially distancing at work, and/or mandating the unvaccinated employee to wear a mask at work.
Religious Accommodation
Under Title VII, an employer is required to accommodate an employee’s sincerely held religious belief, practice, or observance – unless it would cause an undue hardship on the employer. This “undue hardship” would have to be something more than a minimal cost to the employer.
