It seems that the news changes every day about if and when a COVID-19 vaccination is going to become a reality for the American public. Employers are already thinking about how to keep their workplaces safer in this pandemic, especially as industries begin to slowly open and bring people back from home-based work into offices and other workspaces.

If a safe vaccine becomes available, the inevitable question will arise of whether an employer can make a COVID-19 vaccination a condition of returning, continuing or beginning to work. Or, would a vaccination refusal give the employer the right to impose other negative conditions like a pay cut or required leave of absence?

The EEOC’s guidance

The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency tasked with enforcing federal anti-discrimination in employment laws. Because of COVID-19, on March 21, 2020, the agency updated a guidance document on pandemic preparedness to clarify important issues for employees, employers, job applicants, human resources personnel and others. The EEOC had originally issued this written guidance in 2009 in response to the H1N1 virus.

With some exceptions, an employer may require all employees to receive a COVID-19 vaccination should researchers develop a safe, available vaccine. The EEOC describes two potential exemptions for certain employees from the vaccine mandate:

  • Title VII of the Civil Rights Act of 1964 (applying to most employers with at least 15 employees), which forbids discrimination based on religion (among other things), would require the employer to provide reasonable accommodation (unless it would be an undue hardship to the business) for the vaccination if an employee gives notice that the vaccination would violate their sincere religious beliefs.
  • If an employee works for an employer covered by the Americans with Disabilities Act (ADA) (usually employers with at least 15 workers) and has a protected disability that would prevent them from being safely vaccinated, they may be exempt from the mandatory vaccination – a reasonable ADA accommodation – unless it would cause undue hardship to the employer.

While the future status of a COVID-19 vaccine is still unclear, employees and employers alike are likely beginning to ask questions surrounding its appropriate – and legal – use in employees.

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