Can Your Boss Make You Get Vaccinated?

Employers have the right to set reasonable health and safety policies for their workplace. Generally, this includes requiring workers to get a COVID-19 vaccine and excluding them from the workplace if they refuse.

According to the EEOC, “If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.”

However, the employer may not ‘automatically’ terminate the worker without potential consequence. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

What if I have a disability that makes me unable to receive a COVID-19 vaccination?

Generally, employers may require that their employees do not pose a direct threat to the health or safety of individuals in the workplace. If this would ‘screen out’ someone with a disability, employers must show the unvaccinated employee posed “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.” 29 C.F.R. 1630.2(r).

That sounds really complicated. How does an employer make this assessment?

The EEOC recommends employers conduct an individualized assessment of four factors in determining whether a direct threat exists:

• the duration of the risk;
• the nature and severity of the potential harm;
• the likelihood that the potential harm will occur; and
• the imminence of the potential harm.

When a direct threat cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Indeed, when an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat in the workplace, the employer cannot exclude the employee from the workplace unless there is no way to provide a reasonable accommodation that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

What if my employer cannot exempt or provide a reasonable accommodation when I cannot comply with a mandatory vaccine policy because of a disability?

According to EEOC guidance, it would be lawful for the employer to exclude the employee from the workplace. The employer may not, however, automatically terminate the worker. Instead, employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

Call us today for more information.

Pignatelli & Associates P.C., 102 East Route 30, Suite 1, Rock Falls, IL 61071, 815.626.0500, www.pignatellilaw.com