“This guidance makes it very clear that employers have the law on their side,” Sahar Aziz, a professor at Rutgers Law School with experience in employment discrimination, told MarketWatch. “Your employer may order you to get the COVID-19 vaccine, as long as you do not have it. [sincerely held] religious belief or a disability that would prohibit you from getting the vaccine. “
If the basis for an employee’s refusal to receive the vaccine is a religious belief or disability, employers have a legal obligation to provide reasonable accommodation so that the employee can maintain his or her job but perform. remotely, go on unpaid leave or change their job duties. , Said Aziz. But an employer can reject the requested accommodation if it presents an undue difficulty, such as significant expenses or difficulties.
Meanwhile, if an employee is unable to obtain the vaccine due to a disability or religious belief and no reasonable accommodation is possible, the employer could legally exclude that person from the job, the EEOC added.
But the possibility of excluding an employee from the physical job does not mean that the employer can dismiss him automatically: “Employers will have to determine whether other rights apply under EEO laws or other federal, state and local authorities.” . said the agency.
Employers have limited capacity to require medical examinations, such as vision tests, blood and urine tests, and diagnostic procedures. But a vaccine against COVID-19 administered by an employer is not a medical examination, the EEOC said, because the employer does not request information about the worker’s current health status or deficiencies. (Instead, an antibody test is a medical examination under the American Disability Act, according to the EEOC).
The agency added that asking an employee to provide evidence that they were vaccinated against COVID-19 does not count as a disability-related investigation.
“There are many reasons that may explain why an employee has not been vaccinated, which may or may not be related to disability,” the EEOC said. “Simply requesting proof of receipt of a vaccine against COVID-19 is not likely to obtain information about a disability and is therefore not a disability-related investigation.”
But follow-up questions, such as why someone was not vaccinated, “can get information about a disability and would be subject to the relevant ADA standard that is“ work-related and consistent with business needs, ”he said. the agency.
The Food and Drug Administration has this month granted emergency use authorization to vaccinated Pfizer PFE candidates,
and its German partner, BioNTech BNTX,
and Modern MRNA,
providing a bright spot in a pandemic that has killed more than 319,000 people in the US
Healthcare workers and residents of long-term care facilities are the first in dose; experts expect the average American who doesn’t fall into a high-priority group to be vaccinated in the summer. Public health professionals suggest that approximately two-thirds of the U.S. population would need antibodies to achieve herd immunity, which the country has never reached due to natural infection with a new virus.
About seven out of ten current or recent executives surveyed for the Yale Chief Executive Leadership Institute virtual summit suggested they were open to requiring vaccinations, CNN reported last week. But many executives said they first wanted to see how the initial vaccines went and that they had not yet developed any vaccine plans.
“
If an employer decides to venture beyond using gentle power to persuade workers and promote vaccinations, “this guide allows them to use the stick, not just the carrot.”
”
Legal experts who spoke with MarketWatch previously predicted that employers would be more likely to promote and facilitate COVID-19 vaccines than they were not required to, in hopes of avoiding conflict, possible litigation, and negative publicity.
Some large companies, including Facebook FB,
and Discover Financial Services DFS,
he recently told the Wall Street Journal that they planned to urge workers to inoculate themselves, but to refrain from imposing an absolute mandate. Other employers said they would offer workers financial incentives to get their shots and / or restrict access to certain events and activities for those who are not vaccinated.
If an employer decides to venture beyond using gentle power to persuade workers and promote vaccinations, “this guide allows them to use the stick, not just the carrot,” Aziz said. If an employer’s attempt to conduct a voluntary vaccination program does not achieve the desired level of compliance, “they may require it without having to be exposed to any liability,” except in the case of employees with disabilities or sincere religious beliefs.
These mandates are not without precedent in medical settings: several states require workers in health and long-term care facilities to be vaccinated against influenza and other vaccine-preventable diseases. Many health facilities also require their workers to be vaccinated.
The EEOC pandemic preparedness guide published in response to the 2009 H1N1 pandemic emphasized the fact that an employee could be entitled to exemptions based on an ADA disability or a “religious belief, practice, or observance. sincere, ”he said employers covered by the ADA should have in general, it is intended to simply encourage workers to get vaccinated instead of requiring it.
The federal government also does not seem willing to take a mandate. President-elect Joe Biden said earlier this month that he did not believe mandatory vaccinations were necessary, the BBC reported.
“I will do everything in my power as president to encourage people to do the right thing and, when they do, show that it is important,” Biden said.
And the longtime director of the National Institute of Allergy and Infectious Diseases, Anthony Fauci, told Healthline in August that he did not believe the U.S. government would ever require a vaccine for the general public. although medical facilities may require vaccination of workers before interacting with patients.
“I’d be quite surprised if he asked any element of the general public,” he said, “You can’t force someone to get a vaccine.”