Last month, the U.S. Equal Employment Opportunity Commission updated its technical guidance to address how decisions surrounding COVID-19 vaccine may implicate various equal employment opportunity laws such as the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). According to the EEOC, employers may maintain employee qualification standards that include “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” Employers must then determine whether unvaccinated employees pose a direct threat to the health and safety of others at work. The EEOC explains, “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.”
Legal challenges may arise when employees are unable or unwilling to receive a COVID-19 vaccination due to a disability or sincerely held religious beliefs. In those situations, employers must offer a reasonable accommodation to employees unless doing so would impose an undue hardship on the employer. This analysis will be familiar to many HR professionals and is no different than any other reasonable accommodation/undue hardship issues routinely faced by employers.
When evaluating whether an accommodation must be provided, employers should be mindful that the standard differs based on whether the employee requests an accommodation due to a disability or based on religious beliefs. Under the ADA, a necessary accommodation is deemed “reasonable” and must be provided unless it would cause an “undue hardship,” which is essentially defined as causing significant difficulty or expense. On the other hand, the religious accommodation under Title VII uses a more employer-friendly standard for defining undue hardship: would the employer incur more than a “de minimis” (minimal) cost by providing the accommodation. Possible accommodations for both disability and religious reasons could include many things employers have already required for all employees during the pandemic, such as social distancing, work from home, mask wearing, and others.
The latest EEOC guidance acknowledges that there may be situations where a reasonable accommodation is not possible or would create an undue hardship. “When an employer makes this decision, the facts about particular job duties and workplaces may be relevant. Employers also should consult applicable Occupational Safety and Health Administration standards and guidance.” Before deciding to terminate an employee based upon the lack of a reasonable accommodation, we strongly suggest consulting with your legal counsel.
Although the pandemic has raised innumerable new legal issues, requiring vaccines for employees is not a novel concept. Many employers, mostly in the healthcare industry, have for years required employees to receive the annual influenza vaccine. The legal justification for requiring the influenza vaccine for healthcare workers in the past is the same justification for requiring the COVID-19 vaccine now: unvaccinated employees would pose a direct threat to the health and safety of others in the workplace.
As many Americans anxiously await their turn to receive the COVID-19 vaccine, now is the time for employers to consider how they will address these issues. There are no legal impediments to an employer adopting the mandate for all employees to receive the vaccine. The difficulties arise when employees seek an exception to the requirement. If you have any questions regarding your organization’s coronavirus policies or how to implement the vaccine requirements or handle accommodation requests, please contact any KWW professional.
As always, your workforce is our priority.