The big news in the employment law world this week is the EEOC has issued its long awaited guidance on COVID-19 vaccinations and the ADA, including guidance on mandatory vaccination policies.
Here are the key points:
Employers can impose mandatory vaccination policies and require their employees to get the COVID-19 vaccination. Employee objections based on science or politics are not sufficient to avoid a mandatory vaccination policy, at least as far as the EEOC is concerned.
Employers must make reasonable accommodations for employees who are unable to get the vaccination due to a disability or a sincerely held religious belief or practice. If an employer makes an individualized determination that such an employee poses a direct threat to health and safety in the workplace that cannot be mitigated or resolved with a reasonable accommodation, the employer may exclude the employee from coming into the workplace.
The fact that an employee is excluded from the workplace does not mean that the employer may automatically terminate the employee’s employment. Rather, the employer must consider whether the employee could continue working with an accommodation, such as working remotely.
Employers do not need to provide accommodations that cause an undue hardship. In the context of an ADA accommodation, this is something the causes significant expense or problems for the employer. In the context of a religious accommodation, this is something that causes more than a de minimus cost or burden to the employer. Thus, the obligation to accommodate disabilities is greater than the obligation to accommodate religious belief.While the new EEOC guidance answers some questions, it leaves the most significant one unanswered: should employers require employees to get a COVID-19 vaccination?
Here are the five things for employers to consider:
1. What will you do about employees who refuse to comply?
The COVID-19 vaccination is controversial to many people and some employees may refuse to comply with a mandatory vaccination policy. Employers need to consider the possibility that they may lose employees. They also need to be prepared to enforce policies uniformly or risk discrimination claims.
2. Are you at risk if you do not mandate vaccines?
Some employees and customers may argue that an employer’s failure to require all employees to be vaccinated put them at risk and could be the basis for lawsuits over safety if employees or customers contract COVID-19.
3. What will you do about government mandates?
New York already has pending legislation requiring vaccinations and it would not be surprising to other states introduce similar legislation or to see governors acting through executive orders. Such laws and orders, if enacted, would likely be subject to immediate legal challenges. Employers have to consider how they would navigate such scenarios.
4. Are there additional considerations for unionized workforces?
The short answer is yes. A mandatory vaccination policy impacts terms and conditions of employment and would likely need to be bargained over with the union. Also, employers who are hoping to remain union free might find that an issue like mandatory vaccinations could pave the way for a union to organize their workforce.
5. Are you prepared for the administrative strain?
If an employer is going to mandate vaccinations, they can anticipate issues like turnover, accommodation requests, leave requests, impact on employee morale and absences. These are all issues that will need to be addressed and it makes sense to plan ahead.
Employers should consider the vaccine issue as soon as possible whether or not they intend to have a mandatory policy. If you would like more details, the episode is available here or wherever you get podcasts.
KMK Law articles and blog posts are intended to bring attention to developments in the law and are not intended as legal advice for any particular client or any particular situation. The laws/regulations and interpretations thereof are evolving and subject to change. Although we will attempt to update articles/blog posts for material changes, the article/post may not reflect changes in laws/regulations or guidance issued after the date the article/post was published. Please consult with counsel of your choice regarding any specific questions you may have.
© 2023 Keating Muething & Klekamp PLL. All Rights Reserved
- Labor & Employment Law
- Employment Law
- Pregnancy Discrimination
- Labor Law
- Religion Discrimination
- Employment Litigation
- National Labor Relations Board
- Workplace Accommodations
- Workplace Violence
- Department of Labor
- Employee Benefits and Executive Compensation
- United States Supreme Court
- Federal Trade Commission
- Disability Discrimination
- Employer Policies
- Social Media
- Americans with Disabilities Act
- Race Discrimination
- Sexual Orientation Discrimination
- National Labor Relations Act
- Employer Handbook
- Wage & Hour
- Reasonable Accommodation
- Affordable Car Act
- Title VII
- Employer Rules
- Sexual Harassment
- Federal Arbitration Act
- Transgender Issues
- Employment Settlement Agreements
- Sixth Circuit
- Equal Employment Opportunity Commission
- Fair Labor Standards Act
- Paycheck Protection Program
- Securities Law
- Preventive Care Benefits
- Health Savings Account
- Gender Identity Discrimination
- Posting Requirements
- SECURE Act
- Class Action Litigation
- Disability Law
- US Department of Labor Employee Benefits Security Administration
- Family and Medical Leave Act
- Environmental Law
- Privacy Laws
- Overtime Pay
- Representative Election Regulations
- Department of Justice
- Healthcare Reform
- Older Workers' Benefit Protection Act (OWBPA)
- Electronically Stored Information
- Affirmative Action
- Compensable Time
- Equal Opportunity Clause
- Security Screening
- Supreme Court
- E-Discovery Case Law
- Electronic Data Discovery
- Occupational Safety and Health Administration
- Unemployment Insurance Integrity Act
- American Medical Association
- Attendance Policy
- Return to Work
- Seniority Rights
- Disability Leave
- Equal Pay
- Fair Minimum Wage
- Federal Minimum Wage
- Genetic Information Discrimination
- Media Policy
- National Origin Discrimination
- Social Media Content
- State Minimum Wage
- Wage Increase
- Employment Incentives
- HIRE Act
- Social Security Tax
- The Practical Employment Law Podcast: New Laws Protecting Pregnant and Nursing Workers
- The Practical Employment Law Podcast: What is a Whistleblower and Why Should You Care?
- The Practical Employment Law Podcast: FMLA Traps for Employers
- The Practical Employment Law Podcast: Artificial Intelligence and Employment Law
- U. S. Supreme Court Clarifies Standard for Workplace Religious Accommodations
- The Practical Employment Law Podcast: Non-Compete Agreements Under Attack
- New NLRB General Counsel Guidance Threatens Ability to Enforce Non-Compete Agreements
- The Practical Employment Law Podcast: Exploding 5 Employment Law Myths
- The Practical Employment Law Podcast: The Economics of Employment Law
- NLRB Issues Guidance on the Recent Mclauren Macomb Decision