COVID-19 Vaccinations: Can Companies Make Them Necessary for Staff? (Within the Office 2021) | Arkansas Enterprise Information
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With countless potential COVID-19 vaccinations on the horizon, the business world is relieved.
While the distribution and timing are up in the air, everyone is hoping most Americans will have access to a vaccination by the beginning of the third quarter of 2021.
This gives companies a chance to consider how they would like to approach their employees regarding COVID-19 vaccinations – should they be mandatory or at the discretion of the employees? Many companies, especially in the healthcare sector, will push for mandatory COVID-19 vaccination guidelines.
If your company chooses the “mandatory” route allowed in the event of a global pandemic, you can make requests to waive vaccination after your policy is in place. Some (perhaps most) requests can be turned down, like those who just don’t like the idea of vaccines in general, or those who have a latent distrust of the COVID-19 vaccines (possibly socially or politically motivated). Full Disclosure: I plan to have the vaccination when it is my turn to act.
However, you need to listen to requests not to take the vaccine for health or religious reasons. Ignoring it may violate the Americans with Disabilities Act or Title VII of the Civil Rights Act, both of which apply to businesses with 15 or more employees, and the Arkansas Civil Rights Act, which applies to businesses with nine or more employees.
Here are the specific guidelines from the EEOC on what a covered company should do in response to being asked not to take the vaccination for health or religious reasons:
If an employer needs vaccinations when they are available, how should they respond to an employee who claims they cannot get a COVID-19 vaccination because of a disability? (12/16/20)
The ADA enables an employer to obtain a Qualification standard This includes “the requirement that a person does not pose a direct threat to the health or safety of people in the workplace”. However, if a safety-related qualification standard such as mandatory vaccination weeds out or tends to weed out a person with a disability, the employer must demonstrate that an unvaccinated worker poses a direct threat to health or safety due to a “significant risk of significant hazard” harm of the individual or other person who cannot be eliminated or reduced through reasonable precautions. ” 29 CFR 1630.2 (r). . . . If an employer determines that a person who cannot be vaccinated because of a disability is a direct threat on the job site, the employer cannot exclude the worker from the job or take other action unless there is no way to do one take reasonable precaution (not available) undue hardship) that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.
If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace. However, this does not mean that the employer can automatically terminate the employee. Employers need to determine if other rights apply under EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee for failing to comply with a vaccination waiver application, the employee may be entitled to accommodation such as remote exercise of the current position. This is the same step employers take when they physically exclude employees from a job site based on a recent COVID-19 diagnosis or symptoms. Some workers may be eligible for teleworking or, if not, for vacation leave under the Family First Coronavirus Response Act, the FMLA, or employer’s guidelines.
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If an employer needs vaccinations, if they are available, how should they respond to an employee who claims that they cannot get a COVID-19 vaccination because of a genuine religious practice or belief? (12/16/20)
Once an employer is informed that a worker’s sincere religious belief, practice, or observance is preventing the worker from receiving the vaccination, the employer must make reasonable provision for the religious belief, practice, or observance unless it would constitute an undue harshness Title VII of the Civil Rights Act. The courts have defined “unreasonable harshness” Title VII as more than a de minimis cost or burden on the employer. The EEOC guidelines state that the employer should normally assume that a worker’s application for religious placement is based on a sincere religious belief, as the definition of religion is broad and protects beliefs, practices and observances that the employer may have is not familiar. However, if an employee requests religious accommodation and an employer has an objective basis to question either the religious nature or the sincerity of a particular belief, practice, or compliance, the employer would be entitled to request additional supportive information.
The full text of the EEOC’s vaccination guidelines is available on the Commission’s website.
Just because one of your employees requests an exemption from a mandatory vaccination policy for health or religious reasons doesn’t mean he or she is automatically entitled to do so. But you should listen, learn the facts, and fully understand the law before making a decision (one you may need to explain in court) whether to grant an exemption.
In my view, it is never a bad idea to work with an employee to see if there is a sensible option – like a remote work arrangement, some sort of extended vacation, or even a move to another job.