Erickson, Brown & Kloster, P.C. Newsletter for Thursday, February 25, 2021
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Can Employers Mandate Vaccinations?


Can an employer require its employees to get vaccinated against COVID-19? It's a simple question, but one that does not have an easy answer. In brief, companies can make vaccinations an employment requirement, but there are subtleties involved, and a disability can create an exception.

The Equal Opportunity Employment Commission has provided some guidance in a lengthy Q&A.

For example, if an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability?

In summary, "If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace — or take any other action — unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat."

What if there is a religious objection? Says the EEOC, "Once an employer is on notice that an employee's sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act."

What if a reasonable accommodation is not available? The EEOC tends to side with the employer here. "If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities."

What the Experts Say

Interpreting the EEOC guidance, an article published by the law firm Pillsbury Winthrop Shaw Pittman LLP says, "Despite the EEOC's guidance that employers may permissibly, with certain safeguards and exceptions, require that employees obtain the COVID-19 vaccine for onsite work, adopting a vaccine mandate for employees still carries legal and practical risks, for several reasons."

For example, the article notes that if a workplace can provide acceptable distance between employees and customers and meet other health standards, it would be hard for the employer to make a case for enforcing mandatory vaccination. But they also note: "Businesses that employ frontline essential workers, on the other hand, may more easily be able to establish that the direct threat of an unvaccinated worker cannot be reduced to acceptable levels."

Human Resource Executive quotes Melissa Gonzalez Boyce, an attorney and legal editor at XpertHR: "Employers should really be treading carefully if they are going down the route of mandating vaccinations among their employees."

The law firm Holland & Knight commented on the mandate limits: "How limiting are the limitations? Case law applying them is thin, but generally treats them as narrow. In fact, an argument is taking shape that employers actually have a duty to require the vaccination of certain employees."

The bottom line? Tread lightly and see whether other accommodations are available if an employee absolutely refuses. Remember also that regulations and case law are always changing, so check the EEOC periodically. Be sure to get qualified advice before taking a big step.



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