On December 16, the EEOC issued updated guidance addressing how employers may handle COVID-19 vaccinations. Importantly, the EEOC appears to acknowledge that employers may implement mandatory vaccination programs (i.e., require proof that an employee has been vaccinated) so long as the employer complies with certain guidelines. The full guidance can be found here.
If an employee indicates that he or she cannot be vaccinated due to a disability, the employer is required to consider whether an exception can be made under the Americans with Disabilities Act (ADA). This determination is made based upon whether the unvaccinated individual would pose a “direct threat to the health or safety of individuals in the workplace.” The guidance provides a lengthy summary of the direct threat analysis, which is beyond the scope of this update. Even if the employee poses a direct threat, the employer is required to further consider reasonable accommodations to allow the employee to continue to work in some capacity.
If an employee indicates that he or she cannot be vaccinated due to a sincerely held religious belief, the employer must provide a reasonable accommodation for such belief, absent undue hardship. Whether or not an unvaccinated individual under these circumstances would constitute an undue hardship remains to be seen.
Employers would be well-suited to consider consulting legal counsel in determining whether to implement a mandatory vaccination program and how to handle specific situations of non-compliance with the program.