Widespread COVID-19 vaccination is considered essential for many employers to safely bring employees back to physical worksites.  This has raised questions about whether employers can require employees to get vaccinated as a condition of returning to the workplace.  The Equal Employment Opportunity Commission (“EEOC”) recently issued guidance on vaccination-related issues in the workplace.  Key guidance from the EEOC includes:

• Employers can implement policies generally requiring that employees obtain COVID-10 vaccinations, but employers also must consider accommodations for employees who cannot be vaccinated due to disabilities or sincerely-held religious beliefs.
  
• If the vaccination requirement screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a “direct threat” to the health or safety of other individuals.  A “direct threat” is defined as a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  Employers must conduct an individualized assessment in determining whether a direct threat exists.  This assessment considers:  1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm. 
  
• If the employer determines that the individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer must determine whether it can provide a reasonable accommodation that would eliminate or reduce the risk so that the employee does not pose a direct threat in the workplace.  The employer must provide a reasonable accommodation if one exists, unless doing so would cause an “undue hardship” (i.e. impose significant expense or difficulty). 
  
• Also, if an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance (unless it would pose an “undue hardship”).
  
• If there is no way to provide a reasonable accommodation that would eliminate the direct threat, the employer can exclude the employee from the worksite.  However, this does not necessarily mean that the employer may terminate the employee.  Employers should explore other accommodations such as work-from-home arrangements or paid/unpaid leave for employees who must be excluded from the workplace.  The employer must determine if any other rights or requirements apply under federal, state, or local law. 
  
• Employers may request proof of vaccination from employees.  However, employers should exercise caution in asking follow-up questions regarding the reason an employee has not been vaccinated.  This is because doing so could elicit information about a disability, and such inquiries are subject to the Americans with Disabilities Act’s job-related and business necessity requirement. 

Employers are advised to follow the EEOC’s guidance on vaccinations in the workplace in order to ensure compliance with anti-discrimination laws regarding disabilities and religion.  For more information on COVID-19 safety requirements for California businesses, you may contact Minami Tamaki Coronavirus (COVID-19) Task Force members Sean Tamura-Sato, Lisa Mak, or Claire Choo online or call us at 415-788-9000.

*The contents of this article is for general informational purposes only and does not constitute legal or medical advice.  Information in this article may not constitute the most complete or up-to-date legal or other information.  Readers should contact a licensed California attorney to obtain advice with respect to any particular legal matter. Use of this website does not create an attorney-client relationship between the reader and Minami Tamaki LLP.