The Americans with Disabilities Act (ADA) allows employers to require that “an individual shall not pose a direct threat to the safety of individuals in the workplace.” What if an employee doesn’t want to be vaccinated for COVID-19?
The U.S. Equal Employment Opportunity Commission (EEOC) has added a section to its Q&As about COVID-19 and the ADA that addresses the question.
Specifically, the EEOC addresses this: “If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability?”
The ADA allows an employer to have a qualification standard that an employee shouldn’t pose a safety or health threat in the workplace.
However, if a qualification standard “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.”
What’s a significant risk?
How do you know if an unvaccinated employee poses a significant risk? The EEOC says employers should conduct an assessment in each individual case, and consider four risk factors:
- nature and severity
- likelihood, and
The EEOC says a direct threat would include finding that an unvaccinated person would expose others to the virus at the worksite.
But that doesn’t mean you can “exclude” the employee from the workplace.
First, you must see if there’s a way to provide a reasonable accommodation without undue hardship to the employer.
Accommodations include working remotely. For more help with accommodation requests, consult the Job Accommodation Network website.
If there’s no accommodation available without an undue hardship to the employer, the employee can be physically excluded from entering the workplace, but this doesn’t necessarily lead to automatic termination.
First, it must be determined if the employee is eligible for leave under the Families First Coronavirus Response Act, the FMLA, or the employer’s policies.
The EEOC reminds employers that managers and supervisors should know how to recognize an accommodation request from an employee with a disability and your company’s steps for considering the request.
For more information, click here, and see section K on Vaccinations.