The Latest EEOC Guidance
While the EEOC does not unequivocally state that an employer can mandate workplace vaccinations, it does set forth guidance if an employer chooses to do so. An employer can require mandatory vaccination only if a worker poses a “direct threat” to the health or safety of others without being immunized. A “direct threat” exists depending on the duration of the risk, the severity of the potential harm, the likelihood of harm, and the imminence of the harm.
If there is no “reasonable accommodation” that can be made for unimmunized employee to do his duties without the potential to spread the virus, you can require vaccination.
A doorman, whose duties include constant interaction with building residents, might fit into this category. However, a “reasonable accommodation” for a doorman may be mandatory PPE, along with social distancing, and the installation of plastic barriers and shields. An employer might, as a “reasonable accommodation,” consider changing shift schedules to accommodate this individual. The employer and employee should engage in a flexible interactive process to identify what a “reasonable accommodation” would be.
If an employee can perform her duties remotely, that is considered a “reasonable accommodation.” A property manager, for example, might be able to perform the bulk of her duties from her home. But it is unlawful for an employer to disclose that an employee is receiving a “reasonable accommodation” or to retaliate against an employee for receiving one.
If no “reasonable accommodation” can be provided and the unvaccinated employee poses a “direct threat,” the employer may exclude that employee from the workplace. But that does not mean that the employer may fire the worker—an employer must determine if the employee has other rights under federal, state, and local laws.
Any mandatory vaccination must comply with all federal, state and local laws. The EEOC says that an employer must accommodate an employee for their sincerely held religious beliefs unless it poses an undue hardship to operations. Employers should, however, tread carefully in this area. If an employee is an anti-vaxxer as a matter of opinion, no reasonable accommodation need be provided. But an employee who is a devout Christian with sincerely held beliefs in this area would have to be reasonably accommodated.
State & City Laws Don’t Prevent Mandatory Vaccination
There is currently no New York State or New York City law, guidance, or regulation that prevents mandatory employer vaccination. While a bill is pending in the New York State Assembly to require all New Yorkers to get vaccinated, it is unlikely to pass and get signed into law.
Any vaccination program should comply with all state and local laws and regulations including, but not limited, to providing “reasonable accommodation” for an employee’s disabilities and religious beliefs—unless the accommodation poses an undue hardship to operations. Employers must also avoid implementing any vaccination policies that might be considered discriminatory on the basis of an employee’s race, national origin, sexual orientation, or any other protected category.
An Employer’s Balancing Act
Given that the COVID-19 vaccine may not be widely available until the spring and the fact that certain individuals are concerned about the safety of the vaccine, is mandatory vaccination worth it?
Making vaccination mandatory may encourage employees to seek exceptions based on medical or religious grounds. If so, an employer must provide that employee with a “reasonable accommodation.” Any program must comply with future New York State and local laws and guidelines.
The better option might be a campaign to encourage workers to get inoculated against COVID-19. This may include a vaccination education program, providing incentives to employees who get vaccinated, providing them with paid time off to get inoculated, and covering any costs that might be associated with getting the vaccine.
An employer with a unionized work force will also have to consult its collective bargaining agreement to ensure that any campaign or mandatory vaccination policy complies with its terms. Issues surrounding vaccinations are complex and require sophisticated analysis.
As such, all employers should consult an attorney before enacting any written vaccination policy or embarking on an encouragement campaign.