*This article was originally published as a Legal Alert on December 17, 2020.
With the COVID-19 vaccine becoming available to some and just around the corner for others, the question on many employers’ (and employees’) minds is whether they can (or should) mandate employees be vaccinated as a condition of employment. The Equal Employment Opportunity Commission (“EEOC”) published important new guidance yesterday concerning an employer’s right to require employees to receive a COVID-19 vaccine once it becomes available. The new guidance is available on the EEOC’s website under the heading “Vaccinations.” While the guidance arguably changes little in the state of the law, it does provide some clarification on several key points:
Employers Can Require COVID-19 Vaccines in Most Instances. Although the EEOC stops just short of saying so explicitly, the strong implication from its guidance is that employers generally can require employees to receive a COVID-19 vaccine, though this is not an unfettered right. Here is what the EEOC has to say, which of course addresses potential disability and religious exceptions:
K.5. 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? (12/16/20)
The [Americans with Disabilities Act (“ADA”)] allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). . . .
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