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June 29, 2021

The Equal Employment Opportunity Commission (EEOC) has issued a guideline on one of the biggest questions Americans are asking as they return to work: Can my employer require me to get the COVID-19 vaccine?

In short, yes. The EEOC says that the vaccine may be a requirement of returning to work, but the employer must provide a reasonable accommodation for employees with disabilities or religious objections, unless the accommodation poses an “undue hardship” on the operation of the employer’s business. An employee with a disability requiring an exemption does not need to mention the ADA or use the phrase “reasonable accommodation”.

“Undue hardship” means having more than a minimal cost or burden on the employer. Employers may consider factors such as the number of employees already vaccinated and the amount of direct contact with non-employees whose vaccination status is uncertain.

Now that it is clear the EEOC allows employers to enact a policy requiring all employees to be vaccinated: Can the employer request proof of vaccination? The EEOC says the law does not restrict employers from requiring employees to show proof of vaccination. This information is considered medical information and must be kept confidential.

What about testing? Can an employer require COVID tests? All medical tests required by employers must be “job related and consistent with business necessity.” Employers may take steps to determine if their employees have COVID-19 because an individual with the virus poses a direct threat to the health of others. With this in mind, employers may require testing for employees prior to entering the workplace and continually require testing to determine if an employee poses a direct threat to the health of others. In the alternative, employers may not require antibody testing before being permitted to return to work. Anti-body tests are a medical examination and do not meet the “job related and consistent with business necessity” standard.