Employers Lawfully May Require COVID-19 Vaccination, Advises the EEOC in May 2021
The U.S. Equal Opportunity Commission (EEOC) on May 28, 2021, issued updated guidance on workplace vaccination and states that employers can require a workforce be vaccinated if those employees have reason to come to the employer's facility, office, warehouse, factory, or other property, in updated guidance released on May 28, 2021.
See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, Section K1, at www.eeoc.gov, available at https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (last visited June 3, 2021).
One takeaway is that this requirement, applied to those working from home, such as only teleworking, lacks an initial rationale and could raise questions.
Further, the EEOC advises that consistent with other laws, the ADA as well as U.S. religious accommodation law requires an employer to consider a reasonable accommodation for disability and / or religious grounds for not being vaccinated.
This means that someone in Maryland who has an ADA-defined disability, or bona fide religious belief, has a legal right to accommodation if possible, and an interactive process about it with their employer.
For instance, childhood vaccination requirements often take into account a bona fide religious practice that precludes vaccination, if true and real. This can apply to adults at work too, concerning the COVID-19 vaccine.
In further instance, someone in Maryland can have a disability making vaccination too dangerous for them at this time. If so, and if the disability meets the ADA definition of disability, an employer is required to consider other preventative measures that can permit that same employee to work and keep the workplace safe. At the same time, the employer can examine whether all others solution pose an undue hardship, or direct threat to the worksite and staff, and so accommodation is not possible.
Under the ADA, a complicated pregnancy as documented by a doctor or medical provider can constitute a disability, and so qualifies for resulting ADA protection.
The EEOC provides comprehensive guidance on COVID-19 related work issues at What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. Right now, an employer can require its onsite workforce be vaccinated, as long as not discriminatorily applied, and accommodations where required by law are considered.
As the pandemic evolves, and federal, state and medical guidance changes, this too might change. This article was written on June 3, 2021, and things may change by July 2021 or September 2021, onward, depending on events. So, keep updated.
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