Can an Employer Implement a Mandatory COVID-19 Vaccine Policy?

June 29th, 2021

Can an Employer Implement a Mandatory COVID-19 Vaccine Policy?

By: Jennifer Brodersen and Heather Rooney McBrice

            On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 technical assistance guidance outlining the agency’s views on the legal implications of a mandatory COVID-19 vaccination program under the Americans with Disabilities Act (ADA), Title VII and other EEO laws (the “Guidance”).[1] The EEOC’s Guidance is not binding on the courts, but it is expected to be highly influential. Key takeaways from the Guidance include:

  1. A vaccine is not a medical examination under the ADA. A vaccination, without more, is not a medical examination or a disability related inquiry under the ADA. This is significant because employers must show that any medical exam or disability inquiry under the ADA is both “job related and consistent with business necessity.”

  1. Employers may need to accommodate an employee with a disability who cannot take the vaccine because of that disability. The Guidance states that employers must seek to accommodate individuals with disabilities as part of any mandatory vaccination program under the ADA. If an employee seeks accommodation from a mandatory vaccine requirement due to a disability, an employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Even if an employee poses a direct threat, the employee cannot simply be excluded from the workplace unless the employer concludes that there is no way to provide a reasonable accommodation (absent an undue hardship) that would eliminate or reduce the risk so that the unvaccinated employee does not pose a direct threat. That analysis will likely require an employer to examine the effectiveness of measures such as social distancing and masking. If that analysis results in a decision that exclusion from the workplace is appropriate, the employer must still evaluate whether other accommodations, such as allowing the employee to work remotely, can be provided.

  1. Employers may need to accommodate an employee’s sincerely held religious beliefs if those beliefs prevent the employee from taking the vaccine. The Guidance states that if an employee objects to receiving the vaccine because of the employee’s sincerely held religious beliefs, the employer must provide a reasonable accommodation unless those accommodations would pose an undue hardship under Title VII. Pursuant to Title VII, an undue hardship is one that imposes more than a de minimus burden on the employer. Significantly, social, political, and economic beliefs, and a general “anti-vaccine” viewpoint, are not protected classes under Title VII, although they may be under state or local law (and employers should always check all applicable laws to confirm).

The EEOC Guidance suggests that a mandatory vaccine policy is likely lawful, so long as an employer provides reasonable accommodations for health or religious reasons. Employers should, however, continue to carefully monitor this issue.  If you are an employer needing COVID-19 policy or other guidance on human resources issues, please give Heather Rooney McBride a call today at 417-708-9681.

[1] See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (