A Vaccine for "Normal," but Legal Issues to Consider for Employers

With the COVID-19 vaccine becoming increasingly available, Illinois employers should be aware of various legal issues regarding the vaccine and the workplace.

Can employers require employees to receive the vaccine? If so, what about employees who request an exemption?

There are currently no statutory prohibitions on an employer’s ability to mandate COVID-19 vaccines for employees. The Equal Employment Opportunity Commission (“EEOC”) has taken the position that an employer may require employees to receive the vaccine, provided it allows for appropriate accommodations under the Americans with Disabilities Act (“ADA”) and/or sincerely held religious belief, practice or observance under Title VII of the Civil Rights Act of 1964.

For exemption requests based upon a sincerely held religious belief, employers must provide a reasonable accommodation unless it would pose an “undue hardship.” Employers should ordinarily assume that an employee’s religious accommodation request is based on a sincerely held practice r belief, since Title VII defines those concepts broadly. If, however, the employer has an objective basis for questioning either the religious nature or sincerity of the belief, practice, or observance, the employer may request supporting information.

If an employee requests an exemption based on a medical condition, the employer will need to individually assess whether that person will pose a “direct threat” to herself or other employees as set forth in the ADA regulations.

If so, the employer must attempt to provide the employee with a reasonable accommodation that would eliminate or reduce the risk posed by the unvaccinated employee. If the risk cannot be reduced to an acceptable level by a reasonable accommodation, the employer may exclude the employee from physically entering the workplace, but should then consider whether the employee may be entitled to an alternative accommodation, such as performing the current position remotely, and whether any other rights may apply under other federal, state or local laws.