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Part 1: EEOC provides guidance for employers about COVID-19 vaccines

In Dec. 2020 – just as vaccinations against the novel coronavirus were starting to become available to Americans – we posted in this space information about whether employers would be able to require that employees get vaccinated. In that post, we advised employers to prepare for this decision as more information and government guidance became available.

The U.S. Equal Employment Opportunity Commission (EEOC) has clarified that, in general, federal employment laws do not prevent employers from requiring employees to be vaccinated, with two main exceptions.

Under federal law, employers may require vaccines except of certain employees with disabilities or religious objections

These exceptions to a valid vaccine requirement at work are:

  • An employer subject to the Americans with Disabilities Act (ADA) may need to exempt an employee from a vaccination requirement if it would be unsafe because the person has a protected disability, except when a reasonable accommodation of excusing the employee from vaccination would cause undue hardship for the employer.
  • Federal anti-discrimination in employment laws require that a covered employer not discriminate against an employee based on the person’s sincerely held religious beliefs. The employer must allow a reasonable accommodation (excusing the person from the vaccination mandate) if they object to vaccination on religious grounds unless it would create for the employer an undue hardship.

EEOC guidance

On July 2, 2021, 46.7% of people in the U.S. are fully vaccinated, according to Our World in Data, which uses data from the U.S. Centers for Disease Control and Prevention (CDC), and the rate in Kentucky is almost 44%. Yet, a significant number of people probably will not voluntarily seek a vaccination against COVID-19, raising the question: What happens when their employers tell them it is a job requirement?

Recently, the EEOC significantly updated its COVID-19 Technical Assistance Questions and Answers. The agency continued to advise that employers can probably require vaccination of workers subject to the disability and religious exceptions. In the revised FAQs, the EEOC elaborates on key points and addresses issues related to employers offering employee incentives for getting vaccinated.

We will share information about these updates in part 2 of this post.