The federal agency tasked with administering and enforcing civil rights laws against workplace discrimination has issued a new set of guidelines regarding vaccinations in the workplace in response to the COVID-19 pandemic. The U.S. Equal Employment Opportunity Commission (EEOC) issued its interpretation of federal law regarding mandating that employees be vaccinated before returning to the workplace.
According to the EEOC, federal anti-discrimination laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act. An employer may require the employee to provide proof of vaccination. This information is confidential medical information and must be treated as such under the ADA.
Employees who do not get vaccinated because of a disability, a sincerely held religious belief or pregnancy may be entitled to a reasonable accommodation if such accommodation does not impose an undue hardship on the company’s operations, the EEOC guidelines said. Employers may still have the employee wear a face mask, social distance from customers and co-workers, work a modified shift, be periodically tested for COVID 19, be given the opportunity to telework or accept reassignment.
An employer may require an employee to be vaccinated if the unvaccinated employee poses a direct threat in the workplace and there is no reasonable accommodation which would reduce or eliminate the threat. The determination that a particular employee poses a direct threat in the workplace should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19. This may include, for example, the level of community spread at the time of the employer’s assessment.
The EEOC said that an employer that creates a COVID-19 vaccination policy requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability, religious belief or pregnancy on an individualized basis. In general, an employer should not question whether an employee has 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 may request additional supporting information.
And it’s OK for employers to offer incentives (both rewards and penalties) for employees to voluntarily receive the vaccine and/or provide proof of vaccination, the guidelines said.
