The Equal Employment Opportunity Commission on Friday released new guidelines for employers on requiring or encouraging workers to get vaccinated against COVID-19.
The legality of requiring vaccination has been a major topic of discussion as more Americans get vaccinated and as the federal government and companies work to increase the country’s vaccination rates.
EEOC Chair Charlotte A. Burrows said in a statement that the new guidance “addresses frequently asked questions concerning vaccinations in the employment context.”
Here’s what to know about the updated guidance on mandating the vaccine.
Can companies require employees to get vaccinated?
Yes — with some exceptions.
The EEOC says there are no federal laws that prevent an employer from requiring employees who are physically in the workplace to get the COVID-19 vaccine.
Legal experts have largely agreed that employers have a right to require the vaccine for their employees, McClatchy News reported in November before the vaccines were widely available.
Employers can also offer incentives for employees to get vaccinated against the virus as long as it is “not so substantial as to be coercive,” the EEOC says.
What are the exceptions?
In some cases, under Title VII and the Americans with Disabilities Act, employers may be required to “provide reasonable accommodations” to employees who do not get the COVID-19 vaccine because of a disability or “sincerely held religious belief, practice or observance” the EEOC says.
But the accommodation must not “pose an undue hardship” on the business.
Examples of these accommodations include having unvaccinated workers wear a mask, social distance, work a modified shift, be tested periodically, work remotely or be reassigned.
If an employee cannot be vaccinated because of a disability, the employer may not require them to receive the vaccine unless it can demonstrate the person would “pose a direct threat” to the health and safety of other employees. If they do, the employer should asses whether a “reasonable accommodation” would reduce the threat.
Additionally, employers that require the COVID-19 vaccine “may need to respond to allegations that the requirement has a disparate impact on — or disproportionately excludes — employees based on their race, color, religion, sex or national origin under Title VII,” the EEOC says.
“Employers should keep in mind that because some individuals or demographic groups may face greater barriers to receiving a COVID-19 vaccination than others, some employees may be more likely to be negatively impacted by a vaccination requirement,” the guidelines say.
Enforcing the requirement
Employers can ask for proof of vaccination without violating rules on making a “disability-related inquiry.”
“There are many reasons an employee may not show documentation or other confirmation of vaccination in the community besides having a disability,” the EEOC says. “Therefore, requesting documentation or other confirmation of vaccination by a third party in the community is not a disability-related inquiry under the ADA, and the ADA’s rules about such inquiries do not apply.”
But documentation on an employee’s vaccination status is considered confidential, the EEOC says.
The EEOC says that “as a best practice,” employers that decide to require documentation or confirmation of vaccination should inform all employees it will consider accommodation requests on an individual basis.
Workers must notify their employer that they need an exemption or accommodation because of a disability, and the employer and employee “typically engage” in finding an accommodation, the EEOC says. That process can include determining whether supporting medical documentation is necessary.
If an employee says they can’t be vaccinated for religious reasons, the employer “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice or observance,” the EEOC says.
“However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information,” it says.