Employers Can Bar Unvaccinated Employees, Government Says

As the first Covid-19 vaccinations are rolling out across the country, the federal government has permitted employers to require immunization for the majority of workers.

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Generally speaking, companies now have the legal right to mandate that employees get vaccinated for COVID-19, according to the Equal Employment Opportunity Commission’s (EEOC) recent guidance. Specifically, employers are required to guarantee a safe workplace in which "an individual shall not pose a direct threat to the health or safety of individuals in the workplace." Which can mean a business requiring its employees to be vaccinated.

There are exceptions for employees with disabilities or "sincerely held" religious beliefs, protected by the Americans with Disabilities Act (ADA) and Title VII, respectively.

If required, employees can make a request for accommodation under the ADA, and the employer is obliged to try and meet that request wherever possible.

While the Americans with Disabilities Act prohibits an employer from requiring employees to get a medical examination, protection does not apply in this instance as the EEOC makes it clear that a vaccination is not a medical examination. In the same vein, requiring an employee to show proof of vaccination does not constitute a disability-related inquiry under the ADA.

The EEOC states that employers “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief,” but acknowledges that an employer is justified in requesting information from the employee if it has an “objective basis for questioning” the sincerity of the religious belief.

This legislation does not give employers the right to fire a worker who declines to be vaccinated on the spot. Under federal, state, and local laws, they could be eligible for unpaid leave or similar entitlements. However, it does make clear that if the work cannot be carried out remotely and there is no way to accommodate the employees’ wish to remain unvaccinated, they can be terminated.

If you need assistance navigating the ever-changing rules for employers regarding Covid-19, get in touch!