With the first doses of Pfizer’s COVID-19 vaccine now being administered in the US, the federal government is giving employers across the country the green light require immunization for most workers.
In general, companies have the legal right to require employees to receive a COVID-19 injection, the Equal Employment Opportunity Commission (EEOC) said Wednesday. More specifically, employers have the right – and are obliged – to provide a safe workplace where “a person does not pose a direct threat to the health or safety of persons in the workplace”. That could mean that a company has to vaccinate its staff.
The Americans with Disabilities Act limits an employer’s ability to require employees to undergo a medical examination. But the latest EEOC guideline makes it clear that vaccination is not a medical investigation. As a result, ordering employees to take a COVID-19 recording wouldn’t violate the ADA.
According to the agency, not all employees need to be vaccinated. Workers with disabilities or with “genuine” religious beliefs that prevent them from getting vaccinated are exempt, according to the EEOC, which is charged with enforcing laws against discrimination in the workplace.
“If they need it, an employee can apply for accommodation under the Americans with Disabilities Act or Title VII, and when they apply for the accommodation, the employer is required to see if accommodation is available,” said Helen Rella. , a workplace attorney at Wilk Auslander, a New York law firm.
In such cases, an employer should try to provide the employee with reasonable accommodation, for example by letting him work from home. However, if that is not possible and unvaccinated individuals pose a potential threat to themselves or others, a company has the right under labor law to exclude them from physical access to the workplace.
In particular, this does not mean that an employer can dismiss an employee who refuses to be vaccinated. According to the EEOC, they could be eligible for unpaid leave or other similar rights under federal, state and local laws.
“At some point, if they have job-protected unpaid leave, it could add up to the level of unnecessary hardship. But it should be on a case-by-case basis,” said Sharon Masling, a workplace attorney at Morgan Washington, DC. and former Chief of Staff to an EEOC Commissioner.
But the agency’s guidance does mean that if an employee’s work cannot be done remotely and there is no reasonable way to accommodate the person’s desire not to be vaccinated, the employer can terminate their employment.
“The logical conclusion is that if accommodation is not available and the job requires the employee to be in the physical workplace – and they pose a direct threat to the safety of the workplace or others – then yes, they can be terminated , ”Said Rella.