Employers may require employees who enter the workplace to be vaccinated against COVID-19, the Equal Employment Opportunity Commission said in updated guidance issued May 28.
The requirement is limited only by an employer’s duty to provide reasonable accommodations to workers who decline the vaccine due to a disability or a deeply held religious belief, the agency said.
“The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19,” subject to the reasonable accommodation provisions of Title VII, the ADA, and other EEO considerations, the EEOC said in a statement.
“These principles apply if any employee gets the vaccine in the community or from the employer.”
CBIA HR Counsel Diane Mokriski said that when an employer mandates the COVID-19 vaccine and learns that an employee has requested an exemption, the employer should consider three issues:
- Whether the unvaccinated employee would create a direct threat to the safety of others
- Whether a reasonable accommodation to the mandate is available
- Whether the accommodation would create an undue hardship for the employer
The EEOC says an employer should consider several factors when determining whether an unvaccinated person presents a direct threat to the health or safety of others.
These factors include the level of community spread, whether the employee works alone or outside, the frequency of interaction with others, the vaccination status of colleagues, whether other employees are wearing masks, and whether the workplace offers enough room for social distancing.
An employer who determines that a direct threat exists should evaluate whether a reasonable accommodation would reduce or eliminate that threat.
Examples of reasonable accommodations include having unvaccinated employees wear a face mask, work at a social distance from others, work a modified shift, get tested periodically for COVID-19, be allowed to work remotely, or as a last resort, accept a reassignment, the EEOC said.
“Employees who are not vaccinated because of pregnancy may be entitled (under Title VII) to adjustments to keep working if the employer makes modifications or exceptions for other employees,” the agency noted.
“These modifications may be the same as the accommodations made for an employee based on disability or religion.”
An employer may be exempt from providing an accommodation if it would pose an undue hardship on the business operation, the EEOC said.
“This analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) or for religion,” the EEOC said.
'Undue Hardship' Standard
Mokriski said the "undue hardship" standard is slightly different under the ADA and Title VII, and will involve a different analysis, depending on whether the employee is requesting an exemption based on disability or religion
“Employers considering declining a reasonable accommodation request due to undue hardship would benefit from consulting with counsel first,” she said.
The EEOC advised employers against having a vaccine policy that has a disparate impact on or disproportionately excludes employees based on race, color, religion, sex, national origin, or age.
“Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement,” the agency said.
“It would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, gender orientation, and gender identity) national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason.”
Employers can provide their workers and workers’ family members with educational information about COVID-19 vaccines, raise awareness of the benefits of vaccination, and answer common questions and concerns, the agency said.
Incentives for workers to get vaccinated are permitted, as long as they are “not so substantial as to be coercive,” the EEOC said.
Employers may also “offer an incentive to employees to provide documentation or other confirmation from a third party not acting on the employer’s behalf, such as a pharmacy or health department, that employees or their family members have been vaccinated” without violating the Genetic Information Nondiscrimination Act.