The U.S. Equal Employment Opportunity Commission (“EEOC”) recently issued guidance how businesses who implement vaccination requirements should handle workers who opt out due to a disability or religion. The EEOC is allowing employers to exclude employees from the workplace when there is no reasonable accommodation possible. Furthermore, administering vaccinations or requesting proof of vaccination for COVID-19 does not constitute a medical examination that would be prohibited by the Americans with Disabilities Act (“ADA”), the EEOC guidance says. “If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace,” the EEOC guidance states. Businesses can require workers provide written proof they received COVID-19 vaccines.

This guidance does not mean employers must implement a COVID-19 vaccination policy; however, it lays out protections for employers who chose to set one. Employers will need to make informed decisions to ensure workplace safety. Reasonable accommodations could include working from home, as well as distancing and PPE (mask mandates) policies. The good news for employees in this EEOC decision is that it is not an outright ban on them working if they choose not to vaccinate for health or religious reasons. However, if the employer can show an unvaccinated employee poses a risk to the health and well-being of fellow employees and cannot be reasonably accommodated, the employer can bar the employee from the workplace. In sum and substance, if an employer is going to mandate a vaccination mandate, it must also explore reasonable accommodations, which also could include FMLA or other personal leave. Employers should act with caution when dealing with employees who express concerns about getting vaccinated because of religious beliefs or health issues. Whether or not to implement a policy is something to discuss with an employment attorney.

At Heiferman & Associates, our labor and employment law attorneys represent employers and employees in a wide variety of matters in state and federal courts, as well as administrative agencies (EEOC, DCR, DHR, and the Dept. of Labor). We advise and represent clients (both employers and employees) in areas including minimum wage, overtime (FLSA and NYLL), unemployment, workers compensation, discrimination (Title VII, NYHRL, NYCCHR, NJ DCR), harassment and other wrongful terminations. We advise employers on litigation avoidance by providing training, audits and review/creation of workplace policies and handbooks. We have extensive experience negotiating and drafting a full range of employment agreements, such as severance, non-compete and non-solicitation, non-disclosure and more. Contact our office for a consultation.