By Meghan Droste, June 16, 2021
Happy almost-summer and Happy Pride Month FELTG readers! What a difference a year makes. This time last year, we were just a few months into the pandemic, with a return to “normal” not even close to being on the horizon for many of us. Now we’re discussing summer plans and even starting to get out and be in the same space as people we’ve only seen on a screen for the past 15 months. We have the wide availability of vaccines to thank for this return to a new normal. And with 53 percent of the 18-plus population in the U.S. fully vaccinated, many people are starting to look at a return to the office in the coming months.
The upcoming back-to-the-office season comes with many questions about what employers can and cannot do with respect to COVID vaccination requirements and issues surrounding them. Fortunately, the EEOC recently updated its COVID-19 guidance to address these issues.
The most commonly asked question seems to be whether an employer may require employees to be fully vaccinated before returning to the workplace? The EEOC says yes. “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19.”
For now, however, it looks like that won’t be the case for most Federal employees. On June 9, the Biden administration released new guidance stating that “[a]t present, COVID-19 vaccination should generally not be a pre-condition for employees or contractors … to work in-person.”
Agencies should continue to monitor this guidance, as it could change over time.
If agencies do require vaccinations for some or, in the future, all employees, these requirements are subject to the reasonable accommodation requirements of the Rehabilitation Act and Title VII. As the Commission states in its most recent information, employers must provide accommodations for employees who are not vaccinated because of a disabling condition or a sincerely held religious belief, unless doing so would pose an undue hardship. [Editor’s note: Get the latest guidance and best practices. Register now for Vexing Vaccine Requirements: Responding to Requests for Exemptions, a 75-minute webinar to be held on July 12.]
As you know from the recent discussions of accommodations in my Tips From the Other Side columns, the appropriate undue hardship analysis depends on whether the requested accommodation is connected to a disability or to a religious belief or practice. Accommodations might include requiring unvaccinated employees to wear masks in the workplace and remain at a social distance from other employees. Agencies do not have to undergo the undue hardship analysis for employees who choose not to get vaccinated for reasons unrelated to disability or religion.
As we’ve all seen in the past year, things can change quickly when it comes to the pandemic and related advice. Be sure to continue to monitor the EEOC’s website for their updated guidance on how to handle return to work issues in the coming months. And in the meantime, enjoy your (hopefully) vaccinated summer! Droste@FELTG.com