In part 1 of this post, we explained that the U.S. Equal Employment Opportunity Commission (EEOC) recently updated its guidance about employer-imposed vaccinations against the novel coronavirus. The agency’s main message is that federal anti-discrimination laws do not prevent such a mandate, with exceptions for certain employees.
In most situations, the employer may not require an employee with a disability as defined in federal law to be vaccinated if it would be unsafe. In addition, an employer cannot penalize a worker for refusing a vaccination if it would conflict with a sincerely held religious belief, practice or observance.
In some circumstances, the law would require as a reasonable accommodation of disability or religious belief that the employer waive the vaccine requirement. The question then becomes whether there is a second reasonable accommodation for the unvaccinated employee that would allow them to work without compromising the safety of other employees. Can the employer modify the work environment or other aspects of the job to prevent or mitigate virus spread?
For example, could the unvaccinated employee work from home, in a different building or room, or even outside? What about different working hours when fewer are on site? Can the unvaccinated individual wear a mask when around others or undergo periodic testing for the virus?
An employer must not provide a reasonable accommodation for disability if doing so would cause undue hardship to the business (meaning extremely expensive or very difficult to implement). Because a vaccination requirement is related to safety, if a disability prevents the vaccination, the employer cannot require the vaccine unless without it the employee would cause a “direct threat” to the health or safety of others and the threat cannot be extinguished through reasonable accommodations.
For a religious accommodation, undue hardship means that the employer must not provide the accommodation if it would impose “more than minimal cost or burden on the employer,” according to the EEOC.
Revisions to EEOC COVID-19 FAQs
The EEOC in its updated COVID-19 FAQs affirmed these basic principles, which they had first announced at the beginning of the pandemic. (It revised the FAQs on May 28 and June 28, 2021. Sections marked with these dates contain new material. The vaccination sections begin with Part K.)
- An employer may not apply a vaccination requirement in a discriminatory way or in a way that disparately impacts certain employees based on protected characteristics like disability (including pregnancy-related disability), age, religion, race, color, sex and others.
- In some situations, an employer may incentivize employees to get vaccinated or show proof of vaccination. The incentive may be either positive or negative, but if the employer administers the vaccination, the incentive must not be “so substantial as to be coercive.”
- Employers may require proof of vaccination but must keep confidential employee medical information related to vaccinations.
It is important to remember that while federal equal employment opportunity (EEO) laws largely allow mandatory workplace vaccinations, “other federal, state, and local laws and regulations govern COVID-19 vaccination of employees, including requirements for the federal government as an employer,” writes the EEOC.
Kentucky state anti-discrimination laws have similar prohibitions against unequal treatment based on disability and religion. In Jan. 2021, a bill that would have prohibited employers from requiring vaccinations failed in the Kentucky Senate.
Stay tuned. The EEOC is still considering how recent guidance from the Centers for Disease Control and Prevention (CDC) might impact the EEOC’s public guidance. Namely, the CDC announced May 13 that fully vaccinated people are largely exempt from masking requirements “except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance.”