Guidance issued by the U.S. Equal Employment Opportunity Commission (EEOC) makes it clear that workers could potentially lose their jobs if they refuse to receive a Covid-19 vaccination.
“In general, employers may require their employees to be vaccinated in order to return to the workplace,” said Jonathan Orleans, chair of the Labor and Employment Department at Bridgeport law firm Pullman & Comley. “But employers are also required to make accommodations in certain circumstances.”
Earlier EEOC guidance established that employers may screen employees for Covid-19 symptoms. “Employers may ask all employees who will be physically entering the workplace if they have Covid-19 or symptoms associated with Covid-19, and ask if they have been tested for Covid-19.” The Centers for Disease Control and Prevention has identified a current list of symptoms, which includes fever, chills, cough and shortness of breath.
An employer may exclude those with Covid-19, or symptoms associated with the virus, from the workplace because “their presence would pose a direct threat to the health or safety of others,” it continues.
The latest EEOC guidance issued in December makes it clear that employers may require staff to be vaccinated before returning to the workplace. But, Orleans said, employers may be obligated to waive the requirement for employees with disabilities who have medical reasons for not getting vaccinated.
Such cases often involve those who have a known history of severe allergic reactions ”” anaphylaxis ”” to components of the approved vaccines. An employee who requests a waiver on that basis must undertake a careful analysis of the threat the unvaccinated employee might pose to themselves or others, and what steps might be taken to mitigate the threat.
Those with pre-existing conditions such as diabetes or hypertension generally have been encouraged to get vaccinated, as they are more susceptible to contracting the virus. The American College of Obstetricians and Gynecologists issued an advisory for pregnant women that, while noting a lack of data, posited that vaccines “should not be withheld” from those who are pregnant or lactating and meet priority criteria.
The EEOC guidance states that while pregnant women, as well as those ages 65 or older, have been classified by the CDC “as being at greater risk (of contracting the virus) does not justify unilaterally postponing the start date or withdrawing a job offer.
“However,” it adds, “an employer may choose to allow telework or to discuss with these individuals if they would like to postpone the start date.”
Making accommodations
Orleans said another situation where an employer could be required to waive its vaccination requirement is for employees with what the EEOC calls a “sincerely held religious belief, practice or observance.”
With regard to both employees with disability-related objections and those with religious objections to a vaccination requirement, “It seems to me pretty clear that if an employee can work from home and has successfully been working from home and is in one of these categories, the employer should allow them to continue to work from home,” he said.
“And that”™s true even if the employer would like to require that they come back to the office or plant or other workplace.”
But those exceptions also have exceptions, Orleans noted. “If you”™re working in a medical office, a nursing home or a hospital, for example, where you”™re interacting with members of the public, patients and clients who are already medically compromised and therefore at greater risk, I could see the employer perhaps taking a harder line on mandatory vaccinations.”
Can an employer terminate an employee who refuses to be vaccinated?
“I don”™t think the answer to that question is 100% clear in every circumstance ”” it depends on the nature of the workplace and the nature of the job,” he said. “If there would be a direct threat to coworkers and members of the public, the employer would be justified in taking steps to mitigate or eliminate that threat,” which could include employee termination.
The key phrase in the EEOC guidance is “reasonable accommodation,” Orleans continued. “An employer has a legitimate need to have the job done. If there is nothing I can do as an employer to accommodate an employee who can”™t be vaccinated because of a disability or a religious restriction, I am permitted to discharge that employee.”
“But,” he noted, “I don”™t have to” fire the employee. “I might be able to furlough them and see how things develop ”” although not every employer will be able to do that.”
As for the so-called anti-vaxxers ”” those who refuse vaccination because they think vaccines cause autism or who object to vaccinations on political grounds ”” Orleans said, “The employer does not have a legal obligation under federal law” to retain them.
“Privacy issues associated with one”™s personal health are affected by the Americans with Disabilities Act and a number of other laws,” he said. “An employer who obtains medical information about an employee would be well-advised to keep that information confidential,” Orleans said, adding that even though employers are forbidden from making certain kinds of medical inquiries, they may require employees to provide proof that they have been vaccinated.
Most of his employer clients so far are taking a position of encouraging, rather than mandating, vaccinations, he noted.
Asked whether the EEOC guidance could result in a flurry of wrongful termination cases, Orleans said: “There are always people who will bring a lawsuit. And I guarantee there will be lawsuits, if there aren”™t already, brought by people who were let go for refusing to be vaccinated, claiming their legal rights have been violated.
“But,” he added, “I don”™t think those lawsuits will get very far.”
