New guidance from the Equal Employment Opportunity Commission (EEOC) seeks to clarify to what degree employers can require workers to get the COVID-19 vaccine and what exceptions are permitted.
“Essentially, these guidelines recognize that it is legitimate for an employer to employ only persons who have been vaccinated for Covid,” Jay Mootz, professor of law at the University of the Pacific McGeorge School of Law, told the Northern California Record by email.
The EEOC released its updated guidance for employers on Dec. 15, just after the FDA’s emergency authorization of the Pfizer vaccine.
“These guidelines are not legally binding like agency regulations are binding,” Mootz said. “The recommendations are just guidance for how to comply with the laws that exist. Therefore, they can be changed as conditions change, or superseded by statute or regulation.”
“An employer has no authority to require its employees to be vaccinated, but it may have the right to fire an employee who chooses not to get vaccinated in response to an employer's policy,” Mootz said. “Of course, in this employment market the threat of terminating employment can be very coercive, but the employee would have to affirmatively consent to the vaccine being administered.”
Vaccination exceptions may be granted to individuals based on a disability, medical condition, or religious tenet.
“These exceptions will be relatively narrow, because the CDC has made clear that there is a public health emergency and so employers are generally deemed to be acting reasonably to keep the workplace free of Covid transmission,” Mootz said. “Generally, an employer must make reasonable accommodations to protect disabled employees or employees asserting discrimination on the basis of religion, which might include permitting the employee to work from home. Given the huge increase in telecommuting over the past six months, this may be seen as ‘reasonable’ and not putting an undue burden on the employer.”
Though vaccines presently only are available to limited groups, distribution is expected to expand in the coming weeks and months.
“In order to do this right, employers should be starting right now, with a study that analyzes workplace conditions and documents the need for a vaccine,” Joseph Paller, an adjunct professor at USC Gould School of Law, told the Record. “And then communicate those conclusions to make sure everybody knows the basis for the decision to require vaccinations. That will help protect employers from employee pushback. A reasoned analysis of the risks versus the benefits of vaccinations will also provide a layer of protection in the event of litigation."
In workplaces with collective bargaining agreements, it will be necessary to meet with union representatives about vaccination programs, said Paller, who is also a principal representing labor unions and multiemployer plans at Gilbert & Sackman.
Staying up to date on the EEOC guidance is essential.
“It may well be that this guidance will be changed when the Biden administration enters office, just by issuing a new guidance memo about what the existing law requires for this novel situation of the pandemic,” Mootz said.