EEOC says employers requiring vaccine doesn’t violate ADA, yet voluntary

We have to learn what our law says, federally and in our state. We have to figure this out so we can be proactive rather than reactive. Legally, it is impossible for an employer to require a vaccine that is only authorized for EMERGENCY use (that is the case with Covid-19 vaccine at this time), but if the FDA approves Covid-19 vaccine for regular use in the future, I don’t know if our laws will protect us. Information obtained from NY Times:

According the U.S. Equal Employment Opportunities Commission’s  guidance, issued 12/16/2020, confirmed employers can require a vaccine, because the administration of a Covid-19 vaccine to a worker by an employer doesn’t fit the definition of a ‘medical examination’ – see following for context:

The disabilities act limits employers’ ability to require medical examinations like blood tests, breath analyses and blood-pressure screening. These are procedures or tests, often given in a medical setting, that seek information about an employee’s physical or mental conditions.

“If a vaccine is administered to an employee by an employer for protection against contracting Covid-19, the employer is not seeking information about an individual’s impairments or current health status,” it stated, “and, therefore, it is not a medical examination.” [no, the vaccine is not a medical examination, it is a medical intervention!]

On its website, the commission said that requiring an employee to show proof of having gotten a Covid-19 vaccination would not amount to a disability-related inquiry.

“There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related,” the commission said.

Even so, employers may need to be careful about how they handle the process.

Prescreening vaccination questions could violate an A.D.A. provision on disability-related inquiries. Employers administering vaccines, the guidance said, must show that prescreening questions are “job related and consistent with business necessity.”

https://edition.cnn.com/2020/12/16/business/ceos-covid-vaccine-mandate/index.html

https://www.nytimes.com/2020/12/18/us/eeoc-employers-coronavirus-mandate.html

BUT!

according to JD Supra.

As a general rule, employees may require that their employees take the COVID-19 vaccine, but, there are two major exceptions to this rule based on disability and religion. On the disability side of things, the employer is permitted to protect the employees from any “direct threat” in the workplace, even if that “direct threat” is another employee. If an employee refuses to get vaccinated because of the employee’s disability, then the employee will need to determine whether that refusal can be accommodated. If not, the EEOC has instructed employers to determine whether that employee would pose a “direct threat” in the workplace. To make that determination, the EEOC has provided four factors for the employee to consider: 1) the duration of 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.

Importantly, a conclusions that there is a direct threat would include a determination that an unvaccinated individual will expose other to the virus at the workplace. [this has not been proven]

“If on the other hand, the employee requests an accommodation based on a sincerely held religious belief, this request must be accommodated unless it would cause “more than a de minimis cost or burden on the employer” (like they would have to create a separate office for you – which is not true, you’re just coming to work as usual).

And, according to The National Law Review,

That EEOC guidance, however, includes a variety of cautionary instructions for employers, including for example, potential restrictions on disability-related questions and recognized protections that must be afforded to employees seeking exemption from vaccination requirements due to medical conditions or sincerely held religious beliefs.

  1. Can an employer require that employees receive one of the new FDA-authorized COVID-19 vaccinations?

ANSWER: Generally, yes.  The EEOC stated that equal employment opportunity laws “do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidance and suggestions.” [not laws!] However, there are potential complications that employers must consider before implementing a mandatory vaccination program.

Certainly, the most significant limitation on a mandatory program is that the employer has to ensure that it properly considers requested exemptions by an employee from the vaccination requirement because of the worker’s (i) sincerely held religious beliefs protected under Title VII or (ii) medical conditions which make receipt of the vaccine dangerous or otherwise inappropriate for that individual consistent with the reasonable accommodation requirements of the ADA.

The law states that as long you have a sincerely held religious belief, that is all you need to say. You don’t need to say where you go to church, or what religion you are a part of. Go to HR and ask for an exemption form.

According the EEOC, as of December 2020, section K.6

K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice [meaning you notified your employer in WRITING] that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship [rearranging meetings or asking you to work from home is not an “undue hardship”] under Title VII of the Civil Rights Act.  Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer. EEOC guidance explains that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

K.7. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief? (12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, [it doesn’t have to be written in the bible, as long as it is held in your soul] and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

If they fire you unlawfully, you make a claim with the EEOC.

Find sample letters, a religious letter, or an employees rights COURSE at www.TheHealthyAmerican.org.

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