Page 24 - BusinessWest July 21, 2021

Get the Vaccine or Get Fired?
EEOC and One Court Say Employers Can Mandate Vaccinations
By John S. Gannon, Esq. and Meaghan E. Murphy, Esq.
To mandate the COVID vaccine, or not to mandate?
That is the question on the minds of
employers across the globe. As employment law- yers, we have been asked that question count- less times by clients (and friends). Until about
a month ago, all we could do was provide our best guess based on guidance and legal deci- sions related to other vaccines, like the flu shot. However, on May 28, the U.S. Equal Employment Opportunity Commission (EEOC) provided some comprehensive COVID-19 guidance that address- es this topic head-on.
The EEOC is the federal agency that enforces anti-discrimination laws applicable to workplac- es. The news is good for Massachusetts employers considering a mandatory vaccine program. Some of the key takeaways for employers are described below.
Mandatory Vaccinations
The EEOC guidance declares in no uncer- tain terms that an employer can lawfully require employees to obtain a COVID-19 vaccination as a condition of returning to the workplace. Such a practice would not run afoul of the Americans with Disabilities Act (ADA) or the Genetic Infor- mation Non-discrimination Act (GINA). There is
h
JOHN GANNON
MEAGHAN MURPHY
Notably, employers should not assume that an employee does not require an accommodation relating to COVID simply because the employee is fully vaccinated. The guidance provides that an employer may need to accommodate an employ- ee who is fully vaccinated for COVID if there is a continuing concern for heightened risk of severe illness from a COVID infection.
For an employee who is unwilling to obtain the vaccination because of a sincerely held religious belief under Title VII, employers should presume that the request is legitimate. The EEOC does make clear, however, that if an employee requests a religious accommodation, and an employer
is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or obser- vance, the employer would be justified in request- ing additional supporting information.
one big catch: an employer mandating vaccines must reasonably accommodate employees who are unable or unwilling to get vaccinated because of a disability or sincerely held religious belief.
These employees might need to be excepted
from the vaccine mandate if other safety mea-
sures can keep them and others safe. The EEOC
provided examples of such accommodations,
including requiring an employee to continue to
wear a mask and socially distance while in the
Employers presented with this issue should proceed with caution, as the EEOC will take a narrow view of such circumstances. Employers
THANK YS U
NURSE
workplace, limiting contact with other employees are required to engage in a similar ‘interactive
and non-employees, providing a modified shift, process’ with employees who have sincere reli-
permitting continued telework if feasible, con- gious objections to vaccination and provide an ducting periodic COVID testing, or reassigning accommodation that
the employee to a vacant position in a different allows the employee Vaccine
workplace.
to return to work
Co
ntinued on page 45
JEoMrhinecaeStE. G.SaFonlmonroensoNfaaOmeuedrdPaParartrntnenrers Specialists in Labor and Employment Law
Congratulations to our newest partner, Erica E.
Congratulations to our newest partner, John S. Gannon.
Flores. In her sev
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Specialties: Employment litigation in state and federal courts elping employers navigate
ce on employment litigation,
and agencies • Class action lawsuits, including class and collective
es and compliance challenges,
wage and hour litigation • Discrimination, harassment, and
laws and OSHA compliance,
yers in courts and governmental
retaliation actions • Internal investigations
petition and confidentiality
contracts, policies and training
age and hour compliance.
Amelia Holstrom
Specialties: Employment litigation • Personnel policies and practices review • Wage and hour compliance • Labor relations • Advice and training • Litigation avoidance • MCAD and EEOC proceedings • Separation and severance agreements
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tthrroughhoouuttNewEEnngglalannddrerelylyoonn Sick Leave and Parental Leave • Employing Foreign Workers/
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agreements • Separation and severance agreements • Single plaintiff and collective/class actions • Wage and hour compliance
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