The short answer is yes, with a couple of exceptions. According to the Equal Employment Opportunity Commission (EEOC), employers are permitted to set standards that an employee will not pose a direct threat to the health and safety of others in the workplace. Those standards may include COVID-19 vaccinations. An employer can require the employee to get the vaccine and provide proof of the vaccination.
However, the EEOC identifies two exceptions to this rule. Employees with disabilities that prevent them from receiving the vaccine cannot be forced by their employer to be vaccinated. Likewise, employees with sincerely held religious beliefs, practices, or observations, cannot be forced to receive the vaccine.
How does the standard change for employees with disabilities?
In order to take any action against a disabled employee in the interest of the well-being of the remaining workers, an employer must show that the unvaccinated disabled employee poses a direct threat to the health of others, and that the threat is not able to be reduced by a reasonable accommodation. The employer must evaluate how long the risk to others will last, the type and severity of the potential harm to others, the likelihood that others may be harmed, and how soon that harm may occur.
If such a threat to others exists and the employer is not able to find a way to eliminate or reduce the threat to an acceptable level, then the employer can prevent the unvaccinated, disabled employee from physically entering the workplace. However, the employer is not automatically permitted to fire the employee because that employee is not allowed in the workplace. The employee and employer will still have to work together to identify a way that would allow the employee to continue to work, that would not cause the employer undue hardship. Potential accommodations include teleworking, or working remotely, if possible.
What if the employee has a religious belief, practice, or observation that prevents them from being vaccinated?
Employers should ordinarily assume that an employee’s request for a religious accommodation is based upon a sincerely held religious belief, practice, or observation. Once an employer receives notice that the employee’s sincerely held religious belief, practice, or observation prevents the employee from receiving the vaccine, the employer is required to provide a reasonable accommodation for the employee unless it poses an undue hardship on the employer. Courts have defined “undue hardship” as having more than a minimal cost or burden on the employer. Similarly to the disabled employee, if a reasonable accommodation is not possible, the employer can prevent the employee from entering the workplace, but cannot terminate the employee because the employee is not allowed in the workplace.
If an employer has an objective basis for questioning the nature or sincerity of an employee’s religious belief, the employer may be justified in requesting additional supporting information.
Every individual situation may require a separate analysis. Please contact us if you wish to discuss.
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