EEOC Addresses Whether Employers can Require Employees to Get Vaccinated

On May 28, 2021, the EEOC issued an update to their Technical Guidance to include more information about vaccinations. The EEOC included many updates.

(NOTE: This blog is the first in a series that will cover the EEOC updates.)

Can an Employer Require Employees Physically Entering the Office to be Vaccinated?

BOTTOM LINE: YES.

The EEOC starts off by addressing the following question:

May an employer require all employees physically entering the workplace to be vaccinated for COVID-19?

True to federal government form, instead of saying “yes” the EEOC states: The Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated….

So now, we have the EEOC confirming that Employers can set out a policy stating that in order for an employee to be physically present in the office, they must be vaccinated. This was always the case, however, it helps to have written confirmation from the EEOC.

As discussed in my previous blog, where there is an employee who cannot get the vaccine due to a religious or disability exemption, the employer must engage in the interactive process and provide an accommodation. As with any disability or religious exemption, employers are not obligated to provide an accommodation when it would prove to be an undue burden on the employer. Employers should consult with counsel to learn more about what exactly is an undue burden.

What is a Reasonable Accommodation?

The EEOC is explicit when it says that employees who do not get the vaccine due to a disability or religious belief/practice, may be entitled to an accomodation. The EEOC provides the following examples of accommodations for individuals who are not vaccinated to due a religious exemption or disability:

  • wear a face mask;

  • work at a social distance from coworkers or non-employees;

  • work a modified shift;

  • get periodic tests for COVID-19;

  • given the opportunity to telework;

  • or accept reassignment.

NOTE: The EEOC does not address the scenario when an employee does not get vaccinated because of personal preference. In other words, employers do not need to accommodate personal preference. However, employers MUST engage in the interactive process and assess whether they can accommodate a sincerely held religious belief or disability.

Prudent employers are encouraged to consult with counsel regarding any accommodations relating to the vaccine.

Susie Cirilli