December 21, 2020 -- Employers can create a mandatory vaccine policy that requires most employees to get a COVID-19 vaccine — or bar them from the physical workplace if no accommodations can be made to protect others’ safety, according to a new update from the U.S. Equal Employment Opportunity Commission. The agency also provided guidance on exemptions.
The Americans with Disabilities Act restricts an employer from requiring workers to get a medical exam. But the commission says the COVID-19 vaccine is not an exam, so requiring employees to get a shot doesn’t violate the act in particular.
The act says that employers face “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” That could include requiring workers to be vaccinated, according to CBS News.
Importantly, not all employees can be mandated to get a vaccine, the agency says. Those with a disability or a “sincerely held” religious belief that restricts them from getting immunizations are exempt. If an employee requests an exemption, the employer must prove that the unvaccinated employee would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others.” Employers must also attempt to provide accommodations at the workplace to eliminate the risk.
“The employer cannot exclude the employee from the workplace -- or take any other action -- unless there is no way to provide a reasonable accommodation,” the commission wrote.
If the “direct threat” can’t be reduced or accommodated, an employer can bar the employee from physically entering the workplace. But employers should find a way for the employee to work remotely. This is the same guidance that companies should follow when employees can’t come to work due to a COVID-19 diagnosis or symptoms, the commission wrote.
“Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship,” the agency wrote.
Employees could also be eligible for unpaid leave or other arrangements under federal, state, and local laws. But if the job can’t be done remotely and there’s no reasonable way to provide accommodation, the employer may be able to terminate employment, CBS News reported.