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EEOC Issues Covid Vaccine Guidance on Workplace Bias Issues (2)

Dec. 16, 2020, 6:13 PM; Updated: Dec. 16, 2020, 9:55 PM

Employers that require workers to receive the Covid-19 vaccine must meet certain requirements under federal anti-discrimination laws that protect disabled and religious employees, according to newly updated guidance from the U.S. Equal Employment Opportunity Commission.

EEOC’s guidance, issued Wednesday, comes as the first doses of the Covid-19 vaccine have been distributed this week, with first priority going to frontline health-care workers.

The agency outlines employer compliance mandates under the Americans with Disabilities Act, Title VII of the 1964 Civil Rights Act, and the Genetic Information Nondiscrimination Act.

It also pointed out the difference between the U.S. Food and Drug Administration’s Emergency Use Authorization of the vaccine as opposed to approval under FDA vaccine licensure, and provided additional information from the FDA.

Disability Law Questions

Employers are permitted to maintain a workplace free of threats to the health or safety of workers under the ADA. But if a worker can’t be vaccinated because of a disability, the employer must prove that an unvaccinated worker would pose a “direct threat” to other workers that wouldn’t be eliminated or mitigated by a reasonable accommodation, according to the guidance.

“A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite,” the guidance states. “If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.”

Employers can generally require vaccinations because most relationships between workers and their bosses are considered “at-will,” with the exceptions of several states.

The EEOC guidance didn’t directly answer, however, whether employers can require employees to receive a vaccine, Littler Mendelson shareholder Emilie Hammerstein said in an email.

“The EEOC affirms that an employer may only exclude an employee who is unvaccinated because of a disability from the workplace if it can establish direct threat and that employers must accommodate sincerely held religious beliefs absent undue hardship,” she said. This guidance “also offers some more detail as to how employers should assess direct threat and the steps they should go through before excluding employees from the workplace or taking other action.”

Greg Abrams, a Faegre Drinker Biddle & Reath partner who represents employers in legal matters, said the sections that touched on accommodations were particularly helpful.

“I think employers may assume, ‘OK, you could just have someone telework,’ but there’s some potential that you may need to accommodate them even at the workplace,” Abrams said. It also opens the possibility of an unvaccinated employee potentially not returning to work—a previously open question, he said.

Considerations for Religion

Sincerely held religious beliefs may also prevent workers from receiving a vaccine, and the guidance provides a road map for employers on that issue.

An employer must provide a reasonable accommodation “for the religious belief, practice, or observance” that prevents the worker from receiving the vaccine under Title VII, unless that accommodation poses more than a “de minimis” cost or burden, according to the guidance.

“If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information,” the guidance states.

The U.S. Supreme Court could have an opportunity to raise Title VII’s “undue hardship” threshold for religious accommodations, if it decides to review two cases that ask the justices to overturn the “de minimis” standard.

The EEOC also elaborated that Covid-19 vaccines don’t use technology that impact workers’ DNA in any way, therefore not triggering GINA, which outlaws employers from “using, acquiring, or disclosing genetic information.”

(Updated with additional reporting.)

To contact the reporter on this story: Paige Smith in Washington at psmith@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com

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