On May 28, 2021, the Equal Employment Opportunity Commission (EEOC) recently issued updated guidelines for employers seeking to implement office-wide policies requiring their employees to get vaccinated. Although vaccines are now widely available, many employers have been unsure about whether and to what extent they are permitted to mandate vaccinations.

The updated guidelines clarify that federal Equal Employment Opportunity laws do not prevent an employer from mandating vaccinations for employees physically entering the workplace, subject to the reasonable accommodation provisions of Title VII, the Americans with Disabilities Act (“ADA”), and other considerations, some of which are discussed below.

Undue Hardship

There has been much talk of late as to whether employers seeking to mandate vaccinations must make exceptions for employees who cannot or will not be vaccinated based on a disability or a sincerely held religious belief, practice, or observance. On this issue, the EEOC does not offer a hardline rule. Rather, it describes an “undue hardship” analysis, pursuant to which an employer must provide reasonable accommodations for such an employee unless doing so would pose an undue hardship on the operation of the employer’s business.

The definition of “undue hardship” will depend on whether the statute at issue is Title VII of the Civil Rights Act or the ADA. The EEOC offers that, under Title VII, courts define “undue hardship” as having more than minimal cost or burden on the employer. The standard set forth under the ADA is, by contrast, a more stringent standard, as it defines undue hardship as “significant difficulty or expense.”

What is a Reasonable Accommodation?

As one example, the EEOC offers that an unvaccinated employee might wear a face mask, work at a social distance from others, work a modified shift, get periodic tests for COVID-19, be given an opportunity to work remotely or, “finally, accept reassignment.” The offer of reassignment should be a last resort. If an employer makes accommodations based on disability or religion, it may also be required to offer the same accommodations to those who are not vaccinated “because of pregnancy.”

Exemptions Based on Disability

An employer who knows that certain employees are disabled can nonetheless implement a mandatory vaccination policy if the policy at issue is safety-related, job-related, and consistent with business necessity. However, the policy could not be imposed upon the disabled employee unless they “would pose a ‘direct threat’ to the health or safety of the employee or others in the workplace, which means they pose a “significant risk of substantial harm” that cannot be eliminated or reduced by providing a reasonable accommodation (absent undue hardship).

To determine whether a disabled employee poses a “direct threat,” an employer should assess the employee’s present ability to safely perform the job. This requires consideration of the following factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. The determination should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID-19 such as, for example, the level of community spread at the time of the assessment. The assessment should also take into account the nature of work environment, such as whether the employee works alone or with others or works inside or outside.

The EEOC advises that, as a best practice, the employer should notify all employees that it will consider requests for reasonable accommodation based on disability on an individualized basis. Employers should also provide managers, supervisors, and those responsible for implementing the policy with clear information about how to handle accommodation requests related to the policy.

Exemptions Based on Religion

As with disability, an employer on notice that an employee’s “sincerely held religious belief, practice, or observance” prevents vaccination must provide a reasonable accommodation unless it would impose undue hardship. The EEOC advises that the definition of religion is broad, and that best practice would be to assume that an employee’s religious belief is sincerely held, absent an awareness of facts that provide an objective basis for questioning either its “religious nature” or its sincerity.

As with disability, an employer should consider all reasonable accommodations including telework and, as a last resort, reassignment.

These guidelines are intended to offer additional clarity to employers as they navigate the post-vaccine workplace. Employers may find additional details on workplace vaccine policies on the EEOC’s website, and should take note that all of the above guidelines are offered with the caveat that, regardless of any undue hardship analysis, an employer may open itself to liability where a vaccine requirement has a disparate impact or disproportionately excludes employees based on their race, color, religion, sex, national origin, or age.

For further information or guidance on how this law may affect your business, or for assistance in revising your policies and procedures in accordance with this law, please contact David Paseltiner at dpaseltiner@jaspanllp.com.