Employers across the country have been given the legal authority to require employees to get the new coronavirus vaccine, according to legal guidance from the Equal Employment Opportunity Commission.
The guidelines say that because employers are entitled and required to ensure a safe workplace in which “an individual shall not pose a direct threat to the health or safety of individuals in the workplace,” a company can require its employees to be vaccinated.
There are several factors that can affect whether an employer can require its employees to receive the vaccine, The Philadelphia Inquirer reported.
The employer has to show that it is necessary for the job — usually for people working in high-risk environments — or that there is a “direct threat,” Community Legal Services’ Rhiannon DiClemente told the Inquirer.
Some states also have restrictions on requiring vaccines, so that will also affect whether employers can require the vaccine.
If employees do not want to get vaccinated, for religious or disability purposes, there are several steps that have to be taken to accommodate the request before they can be terminated.
“Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities,” the EEOC guidelines read.
Requiring employees to get the vaccine does not violate the Americans with Disabilities because people do not need a medical exam to receive the vaccination, according to the EEOC, which enforces laws against workplace discrimination.
There are exceptions to this rule if employees have a disability or “sincerely held” beliefs that prevent them from getting the vaccine.
“If they do require it, an employee can make a request for an accommodation under the Americans with Disabilities Act or Title VII,” Helen Rella, a workplace attorney, told CBS News.
“If they do request the accommodation, the employer has an obligation to see if accommodation is possible.”
Accommodations include giving employees the option to work from home.
If accommodations cannot be made, employers can exclude an unvaccinated individual who poses a potential threat from entering the workplace, “but this does not mean the employer may automatically terminate the worker,” according to the EEOC.
In these cases, the employee could be eligible for unpaid leave or other entitlements under federal, state and local laws.
“At some point, if they are on job-protected unpaid leave, that might rise to the level of undue hardship. But it would be on a case-by-case basis,” Sharon Masling, a workplace attorney at Morgan Lewis and former chief of staff to an EEOC commissioner, told CBS News.
If the worker’s job can’t be done remotely and there’s no way to accommodate the employee’s reason not to be vaccinated, then the employer has the ability to terminate their employment.
“The logical conclusion is that if no possible accommodation can be made and the employee’s job requires that they be in the physical workplace — and they pose a direct threat to the safety of the workplace or others — that yes, they could be terminated,” Rella said.
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