A vast majority of employees have refused to get vaccinated in spite of the continuous rise in Covid-19 cases. This has led some employers to fire workers who have refused to get vaccinated and others are requiring unvaccinated employees to commit to weekly testing.
The Equal Employment Opportunity Commission (EEOC) in response to this matter has provided some answers for the numerous questions employers may have on workplace vaccination. For example, the agency said that federal anti-discrimination laws don’t prohibit employers from requiring all employees who physically enter the workplace to be vaccinated for COVID-19. Employers that encourage or require vaccinations, however, must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 and other workplace laws, according to the EEOC.
According to John Lomax, an attorney with Snell & Wilmer in Phoenix, an employee can be excused from the employer’s vaccination mandate or otherwise accommodated by the employer if they have religious objections to getting vaccinated or are disabled.
“If an employee refuses to obtain a vaccine, an employer needs to evaluate the risk that objection poses, particularly if an employer is mandating that employees receive a COVID-19 vaccine,” Lomax continued.
It is important that a vaccination mandate be job-related and consistent with business necessity
Under the ADA, an employer can have a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If a worker who cannot be vaccinated poses a direct threat to others in the workplace, then necessary accommodations and arrangements such as working remotely, can be made for such a staff. Employers and employees would then have to work together to determine whether a reasonable accommodation can be made.
Helene Hechtkopf, an attorney with Hoguet Newman Regal & Kenney in New York City, said employers should evaluate:
• The employee’s job functions.
• Whether there is an alternative job that the employee could do that would make vaccination less critical.
• How important it is to the employer’s operations that the employee be vaccinated.
According to the EEOC, an employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.”
Johnny C. Taylor, Jr. SHRM-SCP, the Society for Human Resource Management’s President and Chief Executive Officer, in conclusion said, “If an employee cannot get vaccinated because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible, an employer could exclude the employee from physically entering the workplace. But this doesn’t mean an individual can be automatically terminated. Employers will need to determine if any other rights apply under the EEO laws or other federal, state and local authorities.”