December 17, 2020 – UPDATE: EEOC Issues Guidance
The EEOC has issued guidance regarding whether an employer can require its employees to take a vaccine as a condition of employment. As expected, the agency says that the answer is “Yes, for the most part.” You can read the guidance issued here.
In its guidance the EEOC says, “EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.”
Notably, the guidance specifies that administering a COVID-19 vaccine to employees, or requiring proof that employees have received a COVID-19 vaccine, does not involve the use of genetic information to make employment decisions nor the acquisition or disclosure of genetic information. Therefore, Title II of the Genetic Information Nondiscrimination Act (GINA) is not implicated by such requirements either. But pre-screening questions that ask about genetic information may violate GINA.
While federal law sometimes requires employers to grant policy exemptions as religious or disability accommodation, employers may be permitted to exclude from the workplace individuals unable to receive a COVID-19 vaccine under certain circumstances. In the event that an employee is unable to receive a vaccine due to a disability, the employer should conduct an individualized assessment to determine whether a direct threat scenario exists. If a direct threat cannot be reduced to an acceptable level via reasonable accommodation, the employer may exclude the employee from physically entering the workplace, the agency said.
The daily news reports are full of stories about forthcoming vaccines against the COVID-19 virus. It seems that nearly every day another company announces their take on a vaccine for the deadly illness. There can be little doubt that at some point in 2021, there will be enough vaccine to go around and all Americans will have access to these important drugs.
But what if you don’t want to take it? Can your employer fire you for refusing to take a COVID vaccine?
As with most legal answers the answer is “Well…yes and no.”
Generally speaking, an employer can require its employees to take a vaccine as a condition of employment. As an example, most health care employers require their employees to take the yearly flu vaccine.
But there are exceptions. As the EEOC points out in this guidance relating to employers’ ability to force employees to take the flu vaccine:
“An employee may be entitled to an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the influenza vaccine. This would be a reasonable accommodation barring undue hardship (significant difficulty or expense). Similarly, under Title VII of the Civil Rights Act of 1964, once an employer receives notice that an employee’s sincerely held religious belief, practice, or observance prevents him from taking the influenza vaccine, the employer must provide a reasonable accommodation unless it would pose an undue hardship as defined by Title VII (“more than de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA).”
You can read the rest of the guidance here.
While it remains to be seen if the EEOC and other agencies will treat the COVID vaccine the same as they do the flu vaccine, it is a good bet that employers who want to do so may largely be allowed to require taking the vaccine as a condition of continued employment.