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Alert: Can Employers Require Employees to Receive the COVID Vaccine

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MANDATORY COVID VACCINATION POLICIES

Employers will soon be facing the question of whether to require COVID-19 vaccinations as a condition of employment. The U.S. Equal Employment Opportunity Commission (EEOC) recently issued new guidance addressing this question. In brief, employers can require workers to get a COVID-19 vaccine and bar them from the workplace if they refuse. There are, however, exceptions.

Employers are permitted to implement COVID-19 vaccination programs requiring employees to receive the vaccination. On its face, such a policy is lawful under federal law. However, there are certain considerations employers must consider when (i) employers, themselves, provide the vaccinations, or (ii) when employees request
exemptions from the employer’s vaccination policy based upon disability and/or sincerely held religious beliefs. In addition, state or local labor laws may also restrict employers’ vaccination programs and/or policies.

The Americans with Disabilities Act (ADA) generally precludes employers from conducting “medical examinations” of employees. A medical examination is an exam designed to solicit information about an individual’s physical or mental impairments or health. The EEOC, in its recent guidance, explained that providing a vaccination is not a
medical examination under the ADA because a vaccine does not seek information about an individual’s impairments or their current health status.

Under the ADA, the safest route for employers will be to require that employees receive a vaccine from their primary healthcare provider or a neighborhood pharmacy, with the employees then required to provide proof of inoculation to their employers. If employers choose to go this route, there is no prohibition on asking employees to provide proof of
vaccination.

What is an employer to do if an employee requests a waiver to the vaccination requirement due to a “sincerely held” religious belief against vaccinations or due to a disability.

The EEOC cautions employers to not probe deeply into religious beliefs because the definition of religion is quite broad and there is a presumption that the belief is “sincerely held.”

Under the ADA, employers are permitted to require that employees not pose “a direct threat to the health or safety of individuals in the workplace.” If an employer wishes to end an employee’s employment because they do not want to take the vaccine due to  either disability concerns or religious convictions, the employer will need to establish
that the unvaccinated employee would pose a “direct threat to others in the workplace.” A direct threat is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

If an employer concludes that an unvaccinated employee is a direct threat, the employer must engage in an interactive process with the employee to ascertain whether a reasonable accommodation is possible to alleviate the threat.
To discuss how this may affect you or your business, please contact Claire Saady, Esq. at claire@saadyandsaxe.com or (727) 291-2900 or 813-909-8855.

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