KMK Law Management Rights Blog

The big news in the employment law world this week is the EEOC has issued its long awaited guidance on COVID-19 vaccinations and the ADA, including guidance on mandatory vaccination policies. 

Here are the key points:

• Employers can impose mandatory vaccination policies and require their employees to get the COVID-19 vaccination. Employee objections based on science or politics are not sufficient to avoid a mandatory vaccination policy, at least as far as the EEOC is concerned.

• Employers must make reasonable accommodations for employees who are unable to get the vaccination due to a disability or a sincerely held religious belief or practice. If an employer makes an individualized determination that such an employee poses a direct threat to health and safety in the workplace that cannot be mitigated or resolved with a reasonable accommodation, the employer may exclude the employee from coming into the workplace.

• The fact that an employee is excluded from the workplace does not mean that the employer may automatically terminate the employee’s employment. Rather, the employer must consider whether the employee could continue working with an accommodation, such as working remotely.

• Employers do not need to provide accommodations that cause an undue hardship. In the context of an ADA accommodation, this is something the causes significant expense or problems for the employer. In the context of a religious accommodation, this is something that causes more than a de minimus cost or burden to the employer. Thus, the obligation to accommodate disabilities is greater than the obligation to accommodate religious belief.While the new EEOC guidance answers some questions, it leaves the most significant one unanswered: should employers require employees to get a COVID-19 vaccination?

Here are the five things for employers to consider:

1. What will you do about employees who refuse to comply?

The COVID-19 vaccination is controversial to many people and some employees may refuse to comply with a mandatory vaccination policy. Employers need to consider the possibility that they may lose employees. They also need to be prepared to enforce policies uniformly or risk discrimination claims.

2. Are you at risk if you do not mandate vaccines?

Some employees and customers may argue that an employer’s failure to require all employees to be vaccinated put them at risk and could be the basis for lawsuits over safety if employees or customers contract COVID-19.

3. What will you do about government mandates?

New York already has pending legislation requiring vaccinations and it would not be surprising to other states introduce similar legislation or to see governors acting through executive orders. Such laws and orders, if enacted, would likely be subject to immediate legal challenges. Employers have to consider how they would navigate such scenarios.

4. Are there additional considerations for unionized workforces?

The short answer is yes. A mandatory vaccination policy impacts terms and conditions of employment and would likely need to be bargained over with the union. Also, employers who are hoping to remain union free might find that an issue like mandatory vaccinations could pave the way for a union to organize their workforce.

5. Are you prepared for the administrative strain?

If an employer is going to mandate vaccinations, they can anticipate issues like turnover, accommodation requests, leave requests, impact on employee morale and absences. These are all issues that will need to be addressed and it makes sense to plan ahead.

Employers should consider the vaccine issue as soon as possible whether or not they intend to have a mandatory policy. If you would like more details, the episode is available here  or wherever you get podcasts.