Though a COVID-19 vaccine has not yet been introduced, the looming question exists: can an employer require its employees to be vaccinated against COVID-19? Unsurprisingly, the answer is, “it depends.”
EEOC guidance treats a future COVID-19 vaccine in the same approach as existing vaccines, meaning an employer may mandate a vaccine in the workplace but an employee remains entitled to an exemption under certain circumstances. An employer may request an exemption based on an ADA disability that prevents him from taking the vaccine. If an exemption is requested, an employer must grant a reasonable accommodation unless it would result in undue hardship to the employer. The ADA defines “undue hardship” as “significant difficulty or expense” incurred by the employer in providing said accommodation.
An employee is also entitled to an exemption if the vaccine would violate his “sincerely held religious belief, practice, or observance” under Title VII of the Civil Rights Act of 1964. Once an employer receives notice of an employee’s sincerely held religious belief, practice, or observance, the employer must provide a reasonable accommodation unless it would pose an undue hardship to the employer. Title VII defines “undue hardship” as “more than a de minimis cost” to the operation of the employer’s business, which is a lower standard than under the ADA.
For now, the EEOC advises employers to encourage, but not mandate, a COVID-19 vaccine. We will supplement this blog with updated EEOC guidance once a COVID-19 vaccine is available.