As the various Covid-19 vaccines that have received emergency use authorizations from the federal Food and Drug Administration begin to roll out in earnest, employers and workers alike understandably have questions regarding what this vaccination process may mean for workplace safety. The federal Equal Employment Opportunity Commission (EEOC) weighed in on an important aspect of this broader topic in mid-January of 2021. Specifically, the agency clarified that many U.S. employers can broadly require their workers to get vaccinated. Employers can, under certain circumstances, lawfully prohibit unvaccinated workers from returning to their positions. This federal guidance is going to prove controversial and will likely become the subject of legal challenges, given that a significant segment of the population remains wary of subjecting themselves to these new vaccine options.

EEOC Guidelines Regarding the Covid-19 Vaccine

When announcing its vaccine-related regulatory clarifications, the EEOC explained that employers have a general legal right to require that workers get vaccinated against Covid-19, as this mandate facilitates the safe workplace that employers are legally required to maintain. Under U.S. law, employers must follow specific safety mandates in order to safeguard the whole of their workforce against unreasonable threats to their safety. These mandates include broad safety requirements – including those that relate to air quality and noise-related hazards – that potentially affect every worker equally. However, these mandates also demand that employers take targeted action in the event that even a single person poses a genuine safety threat to other workers. The EEOC has consistently insisted that, "an individual shall not pose a direct threat to the health or safety of individuals in the workplace." Should an unvaccinated worker subject their coworkers to a threat of contracting Covid-19, this threat to worker safety could leave employers liable for their refusal to address that threat. Hence, the EEOC’s insistence that employers can require their workforce (broadly speaking) to be vaccinated in order to maintain their job security.

Exemptions and Accommodations

The Americans with Disabilities Act does not generally allow employers to mandate that workers submit to medical examinations as a condition of their employment. However, the EEOC has clarified that vaccination against Covid-19, which is highly transmissible, is a medical procedure, not a medical exam. Being vaccinated doesn’t require employees to divulge anything about their medical status or their medical history that they may wish to keep private. As a result, the act of requiring workers to submit to vaccination doesn’t broadly violate the terms of the ADA.

With that said, there are exceptions to this broad rule. Not every worker in the U.S. can safely receive a vaccine. Additionally, some individuals oppose vaccination on religious grounds. As a result, the EEOC acknowledges that, whether due to disability or sincerely held religious beliefs, there are some workers who cannot be required to submit to a vaccination mandate. In these cases, workers may be required to formally request an accommodation under the Americans with Disabilities Act or Title VII. If it is possible to make a reasonable accommodation accordingly, an employer is bound to honor that request. This approach is consistent with the reasonable accommodation process ordinarily extended to workers with disabilities. A reasonable accommodation may, for example, consist of allowing an unvaccinated worker who cannot receive a vaccination due to disability or sincerely held religious beliefs to work from home.

When Workers Refuse to Get Vaccinated

In the event that it isn’t possible to grant a worker a reasonable accommodation related to a vaccination requirement, an employer is legally permitted to bar an unvaccinated worker from entering the workplace due to the worker’s presence as a safety hazard. In this event, it may seem as if the only option is to terminate the worker’s employment. However, that isn’t necessarily true. Depending on the unique circumstances surrounding a given worker’s situation, they may be eligible and ultimately entitled to unpaid leave, should they choose to avail themselves of that option. Over time, if the worker remains on job-protected unpaid leave indefinitely, an employer might be placed in a position of undue hardship. At that point, job security in the face of additional leave may become compromised as employers aren’t generally required to make accommodations under the ADA or Title VII that cause undue hardship. However, this challenge would be circumstantial and subject to scrutiny on a case-by-case basis.

If a worker is not entitled to job-protected leave and they cannot complete their job duties from home via a reasonable accommodation, it may ultimately be lawful for their employer to terminate their employment if they remain unvaccinated – and therefore remain a threat to the safety of others within a workplace setting. Only time will tell how significant an impact employer vaccine mandates will have on the job security of the American workforce, including those whose disabilities prevent them from being vaccinated safely and those whose sincerely held religious beliefs prevent them from being vaccinated as well.

Legal Aid Is Available

Discrimination in the workplace due to disability or religious beliefs is a complex area of employment law. Although employers are generally required to honor requests for reasonable accommodations, provided that such accommodations won’t result in undue harm to the business in question, not all employers honor legitimate and reasonable requests when they are made. If you have questions about reasonable accommodations and/or discrimination in the workplace due to any protected characteristic, please connect with our firm’s legal team today. Every worker deserves to understand what their rights are under federal, state, and local law. Once our firm learns about your particular questions and challenges, we’ll be able to provide you with personalized legal guidance unique to your situation. At that point, you’ll be empowered to make informed decisions about your legal options. Should you choose to take legal action of any kind, our firm will build the strongest case possible on your behalf. We look forward to speaking with you.