On December 16th the EEOC released additional guidance for the COVID-19 vaccination and its interactions with the workplace. While the EEOC provided a more complete discussion of this interaction (Full EEOC Guidance), I have briefly summarized what employers can do under this new guidance as well as provided my opinion of what employers should do.
What Employers Can Do
• Require that employees receive the vaccine;
• Require that employees provide proof of vaccination; and
• Prevent unvaccinated employees from accessing the workplace
Please note that the EEOC states unvaccinated employees should not be automatically terminated but instead be given unpaid leave. Also, employers must still provide reasonable accommodations to employees with religious beliefs or disabilities that prevent them from receiving the vaccine.
What Employers Should Do
I recommend that employers proceed cautiously. We all yearn for a return to “normal”, but haste makes waste.
Employers should recommend that their workers receive the vaccine and can even facilitate their vaccination. For example, employers can provide time off to receive the vaccine or have the vaccines administered onsite. Regardless, employers should proceed as if none of their employees have the vaccine. Vaccines are not immediately effective, they are not guaranteed to be effective, and they aren’t able to be given to all employees.
If an organization can function with pre-vaccine COVID-19 policies, it should continue to do so while recommending that employees receive the vaccine when they can.
If an organization needs vaccinated workers to function, it should require the vaccination but acknowledge that not all employees are able to be vaccinated and that vaccines are not perfect. While it would then be reasonable to exclude unvaccinated employees, these employers should be mindful of Title VII and ADA requirements. Vaccine-mandatory workplaces should also have standard COVID-19 policies in place, including social distancing and the usage of masks.
Employers should not terminate employees who are unable or unwilling to be vaccinated but should provide reasonable accommodations if they are able to do so, which may include unpaid time off.
Finally, employers should be careful to not overstep; while they may ask about vaccinations, they should be cautious when asking reasons employees cannot be vaccinated. Employs should exercise caution when asking questions that may lead to an answer revealing an employee’s religion, disability, or other protected class.
While we are one step closer to the finish line, the pandemic is not yet over. The laws and regulations that existed prior to COVID-19 are still in effect. Employers should consider this another tool in their toolbox, instead of a silver bullet to return to pre-COVID routines.
Wishing all good health, happy holidays, and a merry Christmas,