Nathaniel Glasser Quoted in “EEOC Guidance: Yes, Employers Can Require the COVID-19 Vaccine”

The Equal Employment Opportunity Commission has determined that employers can require workers to get vaccinated against COVID-19 and offered guidance on exceptions.

Employers have been hoping for clarity from the agency as they mull whether to mandate vaccination even as many people remain concerned about the safety of a vaccine developed so quickly and not tested on certain populations.

The guidelines, published Wednesday, mostly confirm what attorneys have been advising clients as vaccines begin to be distributed.

In essence, the EEOC said employers can require that employees get inoculated as a condition of going to work, unless an employee declines because of a disability or a sincerely held religious belief.

In such cases, the employer must offer a reasonable accommodation to the employee, such as working remotely, as long as the accommodation doesn’t cause “undue hardship” for the employer. If there is no accommodation possible, then an employer may prohibit the employee from entering the premises but not necessarily fire the worker. The employer must see if the employee has any other rights under federal or local laws, including the ability to take unpaid leave under the Family and Medical Leave Act.

Under the Americans with Disabilities Act, before an employer can exclude a worker from the physical worksite, the employer must determine if the unvaccinated employee presents a significant risk in harm to health or safety that cannot be eliminated or reduced through reasonable accommodations.

The EEOC also clarified the applicability of certain laws to COVID-19 vaccine mandates. Vaccination, it says, does not constitute a “medical examination” under the ADA that would require an employer show “it is job-related or consistent with business necessity.”

However, the Centers for Disease Control and Prevention recommends asking screening questions before administering a vaccine to ensure there is no medical reason that would prevent a person from receiving it, and that is a “medical inquiry” that would have to meet the “business necessity” standard. That doesn’t apply if the vaccine is voluntary or if a third-party provider without a contract with the employer, like a pharmacy, administers the vaccine.

“In other words, an employer can avoid this standard if it requires employees to get vaccinated through their own means — going to a pharmacy or a primary care physician,” said Nathaniel Glasser, an attorney with Epstein Becker Green who represents employers.

Employers can ask workers if they have received the vaccine without implicating the ADA or the Genetic Information Nondiscrimination Act.