With the DELTA variant ravaging the country many employers are moving towards requiring vaccinations in the workplace. Federal laws permit an employer to require all employees physically entering the workplace to be vaccinated. Employers who decide to do so – however — must be careful not to end up in Court defending a discrimination claim.
In certain circumstances, employers must provide a “reasonable accommodation” for religious beliefs under Title VII of the Civil Rights Act (“Title VII”) or for medical conditions under the Americans with Disabilities Act (“ADA”).
On May 28, 2021, the EEOC issued guidance to address the obligations on employers under federal anti-discrimination laws that it enforces:
· An employee who does not get vaccinated because of a disability must let their employer know that they need an exemption, otherwise known as a reasonable accommodation under the ADA. Employers should know how to recognize an accommodation request from an employee with a disability. Employers and employees will then engage in a flexible, interactive process to identify a workplace accommodation that does not impose an undue hardship (usually a significant difficulty or expense) on the employer.
· An employee who does not get vaccinated because of a sincerely held religious belief, practice, or observance must let their employer know that they need an exemption, otherwise known as a reasonable accommodation under Title VII. Employers must provide a reasonable accommodation unless it would pose an undue hardship. Under Title VII, undue hardship is defined as having more than minimal cost or burden on the employer. The undue hardship standard under Title VII is easier for employers to meet than the undue hardship standard under the ADA (discussed above).
· The EEOC provides examples of potential reasonable accommodations. For employees who cannot comply with their employer’s vaccine mandate because of a disability or religious belief, practice, or observance the EEOC provides a list of potential reasonable accommodations:
o Wear a face mask at work
o Work at a social distance from co-workers or non-employees
o Work a modified shift
o Get periodic COVID-19 tests
o Work via a telework arrangement
o Accept a reassignment
These examples are not exhaustive. An interactive process is required to determine what accommodations are reasonable and mitigate any direct threat to the workplace.
Should you have any questions concerning vaccinations in the workplace including questions concerning a mandatory vaccination program, please don’t hesitate to contact our team of professionals.