As they resume pre-pandemic operations, employers are understandably concerned about the safety of their employees and clients. As a result, many are implementing mandatory COVID-19 vaccination policies for their employees. According to the most recent guidance from the EEOC, employers are allowed to make such mandates; however, there are exceptions. The first exception is for those who cannot take the vaccine because of a sincerely held religious belief. The second is for those with a medical condition that prevents them from taking the vaccine. In its guidance, the EEOC has cautioned employers to be aware of these exceptions or face the risk of legal liability. 

With respect to the first exception, the EEOC guidance iterates that Title VII prohibits discrimination against those who refuse to be vaccinated because of their sincerely held religious beliefs. For the second exception, the ADA prohibits discrimination against employees who are unable to be vaccinated because of a disability. The new EEOC guidance reminds employers that pregnancy qualifies under the definition of disability under the ADA. Employers who have employees who object to a vaccine mandate for one of these reasons should engage in a two-step analysis. First, the employer should consider whether the unvaccinated employee poses a direct threat to the workplace. Second, the employer should discuss with the employee whether there are reasonable accommodations available to mitigate or eliminate that threat.  

Some factors to consider when assessing whether the employee is a direct threat are the duration of the pandemic, the nature and severity of potential harm, the potential harm’s likelihood of occurring, and the imminence of the potential harm. The latest guidance from state and local health organizations and the employee’s health care providers can be helpful in this analysis. If the unvaccinated employee is determined to be a direct threat, the employer should discuss with the employee possible accommodations. Examples include remote work, a change in the employee’s workstation to one that is further from other employees, modified scheduling, or continued mask-wearing and social distancing for this employee. As with any reasonable accommodation, the employer is not required to implement a modification of the employee’s work that would pose an undue hardship on the employer. The EEOC guidance recommends that employers who are considering implementing a mandatory vaccination policy notify their employees that they will consider reasonable accommodation requests for either religious or disability reasons on an individualized basis. 

Vaccination mandates require an artful balance between an employer’s right to ensure the safety of its employees and patrons and the employees’ rights under federal and state anti-discrimination laws. At Luchansky Law, we routinely assist employers with striking this balance. If your business would like assistance in reviewing or implementing its vaccination mandate for compliance with applicable anti-discrimination laws, give us a call at (410) 522-1020

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