By: Laurie A. McCarthy, Esquire
Many employers and employees have questions about the COVID-19 vaccine. One of the top questions is: can employers mandate that employees be vaccinated?
The bottom line is, yes, employers can require employees to get immunized with the coronavirus vaccine, with some accommodation exceptions.
The U.S. Equal Employment Opportunity Commission (EEOC) issued updated guidance on December 16, 2020, to address questions about the COVID-19 vaccine. The Guidance clarifies that employers can mandate that employees receive the vaccination as a condition of working onsite, provided that, if an employee does not comply, the employer engages in an individualized analysis of whether an exception to that policy is needed to provide a required reasonable accommodation due to a disability (under the Americans with Disabilities Act (ADA)) or a sincerely held religious objection (under Title VII). Employers must also respect the rights of any pregnant employees who are reluctant to take the vaccine, given the current limited data about the safety of COVID-19 vaccines during pregnancy.
If an employer mandates COVID-19 vaccinations, and an employee declines for a protected reason, such as a disability, the Guidance requires that the employer determine whether an unvaccinated employee poses a direct threat to others, and what accommodations are available to reduce or eliminate the threat. Employers cannot terminate employees who have disability-related reasons not to get vaccinated unless the direct threat cannot be reduced to an acceptable level (e.g., through a teleworking arrangement) and no other legal protection applies to the employee (e.g., FMLA leave).
Despite the EEOC’s guidance that employers may permissibly, with certain safeguards and exceptions, require that employees obtain the COVID-19 vaccine for onsite work, adopting a vaccine mandate for employees still carries legal and practical risks, for several reasons. Given the nuances of these issues and the complexity of potentially overlapping state and federal employment laws employers are encouraged to consult with their legal counsel before instituting a mandatory vaccination program.
The Law Firm of DiOrio & Sereni, LLP is a full-service law firm in Media, Delaware County, Pennsylvania. We strive to help people, businesses and institutions throughout Southeastern Pennsylvania solve legal problems – and even prevent legal problems before they occur. To learn more about the full range of our specific practice areas, please visit www.dioriosereni.com or contact Laurie A. McCarthy, Esquire at 610-565-5700 or at [email protected]
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