Attorney Harrison Oldham
With the current roll-out of the COVID-19 vaccine for mass distribution, legal specialist guessed that employers would be allowed to require their employees to get the vaccine subject to limited restrictions. The guess was largely based on the Equal Opportunity Employment Commission’s (EEOC) guidance in regard to the flu vaccine. The EEOC is a federal agency that has the power to enforce federal discrimination laws.
On December 16, 2020, the EEOC weighed in on the COVID-19 vaccine, confirming that, in the EEOC’s opinion, employers may have mandatory vaccine polices, and addressing the limited restrictions as to when employers may have to pause and engage its employees regarding the employee’s medical or religious objections, or other reasons for not wanting the vaccine. The EEOC’s guidance may be viewed here.
In this article, we address two of the most common situations that will surely be faced by many employers:
What should an employer do when an employee states that the employee is unable to receive the vaccine because of a disability?
The ADA allows employers to have a standard that includes “a requirement that an individual shall not pose a direct threat to the health and safety of individuals in the workplace.” When dealing with a vaccine, which 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 due to 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.”
Next, an employer must assess four factors in determining whether a direct threat actually exists: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the possibility that the potential harm will occur; (4) the imminence of the potential harm. If an employer determines that the individual who cannot be vaccinated due to the disability poses a direct threat to the workplace, the employer cannot isolate the employee from the workplace, or take any other action, unless there is no way to provide a reasonable accommodation that would take away or reduce the risk, so the unvaccinated employee does not pose a direct threat.
If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the unvaccinated employee from physically entering the workplace – however, this does not mean that the employer may automatically terminate the employee.
How should an employer respond to an employee who is unable to take the vaccines due to a sincerely held practice or belief?
Once an employer is aware that an employee sincerely holds a religious belief, practice, or observance that prohibits the employee from receiving the vaccine, the employer must provide reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII. “Undue hardship” under Title VII, means to have more than a de minimis cost or burden on the employer. Additionally, if an employee requests a religious accommodation and the employer has an objective basis for questioning either the religious nature or the sincerity of the stated belief, practice, or observance, the employer would be justified is requesting more information. The employer must use the four-factor assessment stated previously to determine whether or not a direct threat exists due to the unvaccinated person. If there is a direct threat, the employer can exclude the employee from physically entering the workplace, however, an employer may not terminate the worker automatically.
About Harrison Oldham
Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.
Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://