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EEOC regs: Employers may require COVID vaccination of employees - but should you?

By: J. Bradley Young, Harris Dowell Fisher & Young L.C.


On Friday, May 28, 2021, the EEOC issued new guidelines, formalizing that employers are not prohibited from requiring all employees to be vaccinated as a condition of employment. The new guidelines (see HERE), include the following statement:


“Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964 and other EEO considerations.”


However, even IF an employer requires all employees to be vaccinated, the requirement is subject to two exemptions under Federal Law:

  1. If the employee has an underlying medical condition that would be adversely affected by the vaccine, this would be an example of a situation where the employer could not require the vaccine due to the requirements of the Americans with Disabilities Act. The employer must provide a reasonable accommodation unless it would pose an undue hardship.

  2. Additionally, an employee may be excused from the vaccine mandate under the religious accommodation provision of Title VII of the Civil Rights Act of 1964. An employee may be exempted if taking the shot would violate his or her sincerely held religious beliefs, practices, or observances (but not political beliefs or preferences). Again, the employer must provide a reasonable accommodation unless it would pose an undue hardship.

Similarly, while there are no laws in either Missouri or Illinois that would prohibit an employer from requiring all employees receive a vaccination as a condition of continued employment, employers would still be subject to the two exemptions listed above even under state law.


RECOMMENDATIONS

Even though employers MAY require a vaccination under both state and federal law, most employers I work with are merely encouraging, rather than requiring, that employees become vaccinated. The reasons for this vary from employer to employer, but mostly include the following:

  • Risks of losing valuable employees who simply don’t want the vaccine.

  • The employer’s concern about being responsible (under workers compensation laws) for the potential adverse effects of the vaccine if taking the vaccine is a condition of employment.

  • A reluctance to provide a reasonable accommodation for employees who qualify for the disability or religious exemption under the ADA.

  • A reluctance to mandate something that seems like a personal decision.

If you have any specific questions about whether to require vaccinations in your workplace, please contact Brad Young at byoung@harrisdowell.com or (636) 532-0300 to discuss various opinions in greater detail.

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