COVID-19 UPDATE from Bellas & Wachowski

Employers Can Require a COVID Vaccine

George Bellas Chicago Business Lawyer George Bellas answers questions for business owners.

Employees can be required to vaccinate.

The federal government has stated that workers can be barred from work if they refuse the vaccine.  Employers can make a COVID vaccination a condition of employment.  But, employers must also consider exemptions for employees with disabilities or religious objections.

After a long delay in getting guidance to employers, on December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) – this is the agency that enforces laws against workplace discrimination – provided the answer to whether employers can require employees to provide proof of vaccination and how employers should respond to employees who indicate that they cannot get vaccinated because of a disability.

The EEOC states unequivocally that employers have the right to mandate a COVID-19 vaccination and make it a condition of employment.  Like every rule, however, there are exceptions for those employees who have a disability-related or religious objection.  The EEOC’s rules discuss three exemptions: disability-related inquiries, accommodations, and the Genetic Information Nondiscrimination Act (GINA).

Requiring an employee to show proof of a vaccination is not a disability-related inquiry.

The EEOC also recommends employers recognize that employees can request an accommodation.  Employers should be flexible and consider accommodations given the nature of the employee’s position and the employer’s workforce.   If an employee raises a disability-related objection to mandatory vaccination and requests an accommodation, the EEOC suggests employers should first determine whether an unvaccinated employee poses a direct threat by examining four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

Dealing with an exemptions based on a religious belief,  the EEOC refers employers to the definition of religion under Title VII of the Civil Rights Act and reminds employers that the definition is broad.  Requests for religious accommodations must be based on sincerely held beliefs.  The belief can be questioned if the employer has an objective basis to question the religious nature of the request or whether the belief is sincerely held.  Only then can the employer can ask for additional supporting information to support the request for accommodation.

The government has clearly stated that employers play an important role in vaccinating enough people to reach herd immunity.  Employers have a unique position to require large numbers of Americans to get the vaccine.  Employers need to recognize the importance of their role in society as well as to their business and customers.