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April 14, 2021

COVID-19 UPDATE: Workplace Vaccine Policy & Requirements

It has been a while since we provided any updates to you regarding COVID-19 issues. However, as Illinois begins to reopen and employers are considering how to bring their employees back to the traditional workplace, questions have arisen regarding whether and how to require employees to take the COVID-19 vaccine as a requirement of returning to the office or workplace. As a starting point for those discussions, we are answering in this update some general questions about the developing law regarding mandatory vaccination requirements in the workplace. To be clear, the issues surrounding this question remain unsettled and, for that reason, we encourage you to contact us if you are considering implementing a vaccine policy.

Does Mandating the Vaccine Violate the ADA or Title VII?

One of the early questions regarding the possibility of requiring vaccination was whether mandatory vaccine policies would violate the Americans with Disabilities Act (“ADA”) or Title VII of the Civil Rights Act of 1964 (“Title VII”). The Equal Employment Opportunity Commission (“EEOC”) has issued guidance answering this question, stating that requiring employees to be vaccinated before returning to the office or workplace is not a violation because employers are allowed to impose a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”

Employers, however, still would be required to address concerns of employees who are not able to receive the COVID-19 vaccine because of a disability or sincerely held religious beliefs. The guidance makes clear that employers must adhere to the requirements of the ADA and Title VII by considering whether a reasonable accommodation is available to allow these employees to continue working. A reasonable accommodation could include allowing the employee to continue to work from home. Of course, the consideration of a reasonable accommodation will depend entirely on the specific facts of each individual request.

Does the FDA’s Emergency Use Authorization of the Vaccines Affect the Ability to Require Vaccination?

Recently, questions about requiring vaccination have been further clouded by claims that the emergency nature of the FDA’s authorization of the three current COVID-19 vaccinations mandates that individuals be allowed to refuse the vaccination. There is at least one pending lawsuit, claiming that under the language of the FDA’s authorization, employees cannot be required to take the vaccination. We expect that there will be additional lawsuits filed in other states raising these same issues and other objections to mandatory vaccination policies.

Further, several states currently are considering legislation that would prohibit employers from implementing mandatory vaccine requirements. These efforts are still in the early stages, so it is unclear whether current proposed legislation will, in fact, be enacted.

As is evident, the issues surrounding this question are continuing to develop. We encourage you to contact us if you have questions about these issues or are considering implementing a vaccine policy.

Gery Chico, Jonathan Leach, and Andrew M. Spangler, Jr.
Chico & Nunes, P.C.

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