There is a light at the end of the long, dark tunnel. Pfizer’s COVID-19 vaccine is now being administered and the Moderna vaccine will soon be next. This has led many employers to ask whether they can require employees to get vaccinated as a pre-condition for returning to the office or a company’s premises. The short answer is yes, as confirmed this week by the United States Equal Employment Opportunity Commission (“EEOC”).
Employers are obligated to ensure a safe workplace. This means they may be able to bar an individual from their premises who poses “a significant risk of substantial harm to the health or safety of the individual or others in the workplace that cannot be eliminated or reduced by a reasonable accommodation.” This analysis requires an “individual assessment.” This does not necessarily mean, however, that such an employee can be terminated.
Employees with a disability, who are pregnant or have a “sincerely held” religious belief that prevents them from getting inoculated are exempt, according to the EEOC. They have the right to request a reasonable accommodation. For example, if they still can perform the essential functions of their job from home, that is one possible accommodation. Another option might be to allow the employee to return to the workplace if he or she is able to wear a mask and the position enables the employee to practice social distancing.
However, discussions concerning one’s disability are a slippery slope. Employers can ask whether an employee has been inoculated, but they generally are prohibited from asking about a disability unless it is “job-related and consistent with business necessity.”
Keep in mind that if an accommodation is not possible, the employee may be entitled to unpaid leave or other entitlements under the law. Once their job protection ends, however, employers may be able to terminate the employee but only if they can demonstrate that a requested accommodation would impose an undue hardship.
More information on this subject can be found in the EEOC’s Revised COVID-19 Guidance, at section K, or by contacting Mandelbaum Salsburg.