GThe statement issued by the U.S. Equal Employment Opportunity Commission (EEOC) makes it clear that workers could potentially lose their jobs if they refuse to get a Covid-19 vaccination.
“In general, employers can request that their employees be vaccinated in order to return to work,” said Jonathan Orleans, chairman of the labor and employment department of the Pullman & Comley law firm in Bridgeport. “But employers must also provide accommodation under certain circumstances.”
Previous EEOC guidelines stipulated that employers could screen workers for Covid-19 symptoms. “Employers can ask all employees who physically enter the workplace if they have Covid-19 or symptoms related to Covid-19 and ask if they have been tested for Covid-19.” The Centers for Disease Control and Prevention has drawn up an up-to-date list of symptoms, including fever, chills, cough, and shortness of breath.
An employer can exclude people with Covid-19 or symptoms associated with the virus from work because “their presence would pose a direct threat to the health or safety of others,” it said.
The latest EEOC guidelines from December make it clear that employers may need to require employees to be vaccinated before they return to work. However, according to Orleans, employers could be required to waive the obligation for workers with disabilities who have medical reasons for not being vaccinated.
Such cases often involve people who have a history of severe allergic reactions – anaphylaxis – to components of the approved vaccines. An employee who requests a waiver on this basis must carefully analyze the threat that the unvaccinated employee might pose to himself or others and what steps could be taken to mitigate the threat.
People with pre-existing conditions, such as diabetes or high blood pressure, were generally advised to get vaccinated because they are more susceptible to contracting the virus. The American College of Obstetricians and Gynecologists issued a recommendation for pregnant women that, despite a lack of data, stated that vaccines should “not be withheld” if they are pregnant or breastfeeding and meet priority criteria.
The EEOC guidelines state that pregnant women and people aged 65 and over have been classified by the CDC as “more at risk (of contracting the virus)”, which does not justify a unilateral postponement of the start date or the withdrawal of a job offer.
“However, an employer can choose to allow or discuss teleworking with these people if they want to postpone the start date.”
Orleans said another situation where an employer could be asked to waive their compulsory vaccination involves workers with what the EEOC describes as “a sincere religious belief, practice or compliance”.
Regarding employees with disability-related objections and employees with religious objections to compulsory vaccination, “It seems pretty clear to me that an employee who can work from home and who has worked successfully from home falls into one of these categories, The Employers should allow them to continue working from home, ”he said.
“And that also applies if the employer wants to demand that he return to the office, factory or another workplace.”
But those exceptions have exceptions, too, observed Orleans. “For example, if you work in a doctor’s office, nursing home, or hospital where you interact with members of the public, patients, and customers who are already medically impaired and therefore at higher risk, I might see that the employer goes on mandatory.” Vaccinations may be harder before. “
Can an employer fire an employee who refuses to be vaccinated?
“I don’t think the answer to this question is 100% clear under all circumstances – it depends on the type of job and the type of job,” he said. “If there was a direct threat to employees and members of the public, the employer would be entitled to take steps to mitigate or eliminate that threat,” which could include dismissing employees.
The key phrase in the EEOC guidelines is “reasonable accommodation,” Orleans continued. “An employer has a legitimate need to get the job done. If, as an employer, I cannot do anything to take on an employee who cannot be vaccinated because of a disability or religious restriction, I may fire that employee. “
“But,” he remarked, “I don’t have to” fire the employee. “Maybe I can take them on leave and see how things develop – although not every employer will be able to.”
As for the so-called anti-Vaxxers – those who refuse to be vaccinated because they believe vaccines cause autism or refuse to vaccinate on political grounds – Orleans said, “The employer has no legal obligation under federal law” to keep them .
“Privacy issues related to personal health are influenced by the Disabled Americans Act and a number of other laws,” he said. “An employer receiving medical information about an employee would be well advised to keep that information confidential,” Orleans said, adding that while employers are prohibited from making certain types of medical inquiries, they may be from employees require proof of having been vaccinated.
Most of his employer clients so far take the position of promoting rather than mandating vaccinations, he noted.
When asked whether the EEOC guidelines could lead to a spate of unlawful dismissals, Orleans said, “There are always people filing lawsuits. And I guarantee that, if there are not already, there will be lawsuits filed by people who have been released for refusing to be vaccinated and claim their legal rights have been violated.
“But,” he added, “I don’t think these lawsuits will get very far.”
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