San Antonio Express-News

Firms can require vaccinatio­ns

EEOC: Shots could be mandated as condition for going to workplace

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The Equal Employment Opportunit­y Commission has decided that employers can require workers to get vaccinated against COVID-19 and has offered guidance on exceptions.

Employers have been hoping for clarity from the agency as they mull whether to mandate vaccinatio­n even as many people remain concerned about the safety of a vaccine developed so quickly and not tested on certain population­s.

The guidelines, published Wednesday, mostly confirm what attorneys have been advising clients as vaccines begin to be distribute­d.

In essence, the EEOC said employers can require that employees get inoculated as a condition of going to work, unless an employee declines because of a disability or a sincerely held religious belief.

In such cases, the employer must offer a reasonable accommodat­ion to the employee, such as working remotely, as long as the accommodat­ion doesn’t cause “undue hardship” for the employer. If there is no accommodat­ion possible, an employer may

prohibit the employee from entering the premises but not necessaril­y fire them. They must see if the employee has any other rights under federal or local laws, including the ability to take unpaid leave under the Family and Medical Leave Act.

Under the Americans with Disabiliti­es Act, before an employer can exclude a worker from the worksite, the employer must determine if the unvaccinat­ed employee presents a significan­t risk in harm to health or safety that cannot be eliminated or reduced through reasonable accommodat­ions.

The EEOC also clarified the applicabil­ity of certain laws to COVID-19 vaccine mandates. Vaccinatio­n, it says, does not constitute a “medical examinatio­n” under the ADA that would require an employer to show “it is job-related or consistent with business necessi

ty.”

However, the Centers for Disease Control and Prevention recommends asking screening questions before administer­ing a vaccine to ensure there is no medical reason that would prevent a person from receiving it and that is a “medical inquiry” that would have to meet the “business necessity” standard. That doesn’t apply if the vaccine is voluntary or if a third-party provider without a contract with the employer, such as a pharmacy,

administer­s the vaccine.

“In other words, an employer can avoid this standard if it requires employees to get vaccinated through their own means — going to a pharmacy or a primary care physician,” said Nathaniel Glasser, an attorney with Epstein Becker Green who represents employers.

Employers can ask workers if they have received the vaccine without implicatin­g the ADA or the Genetic Informatio­n Nondiscrim­ination Act.

In guidelines published last week, the EEOC said employers can require that employees get inoculated as a condition of going to work, unless an employee declines because of a disability or religious belief.

 ?? Zbigniew Bzdak / Chicago Tribune ?? Nicole Costa prepares a COVID-19 vaccine this month at Amita Health Presence Medical Center in Joliet, Ill.
Zbigniew Bzdak / Chicago Tribune Nicole Costa prepares a COVID-19 vaccine this month at Amita Health Presence Medical Center in Joliet, Ill.

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