The big news in the employment law world this week is the the EEOC has issued its long awaited guidance on COVID-19 vaccinations and the ADA, including guidance on mandatory vaccination policies. You can find it here: https://tinyurl.com/yda87e9r
Here are the key points:
- Employers can impose mandatory vaccination policies and require their employees to get the COVID-19 vaccination. Employee objections based on science or politics are not sufficient to avoid a mandatory vaccination policy, at least as far as the EEOC is concerned.
- Employers must make reasonable accommodations for employees who are unable to get the vaccination due to a disability or a sincerely held religious belief or practice. If an employer makes an individualized determination that such an employee poses a direct threat to health and safety in the workplace that cannot be mitigated or resolved with a reasonable accommodation, the employer may exclude the employee from coming into the workplace.
- The fact that an employee is excluded from the workplace does not mean that the employer may automatically terminate the employee’s employment. Rather, the employer must consider whether the employee could continue working with an accommodation, such as working remotely.
- Employers do not need to provide accommodations that cause an undue hardship. In the context of an ADA accommodation, this is something the causes significant expense or problems for the employer. In the context of a religious accommodation, this is something that causes more than a de minimus cost or burden to the employer. Thus, the obligation to accommodate disabilities is greater than the obligation to accommodate religious belief.
While the new EEOC guidance answers some questions, it leaves the most significant one unanswered: should employers require employees to get a COVID-19 vaccination? This is a difficult question but here are five things for employers to consider:
1. What will you do about employees who refuse to comply?
2. Are you at risk if you do not mandate vaccines?
3. What will you do about government mandates?
4. Are there additional considerations for unionized workforces?
5. Are you prepared for the administrative strain?
Comments or questions: Contact Mark Chumley at [email protected] or visit www.kmklaw.com
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