The Guidance makes clear that, at least under Federal law, employers are permitted to implement mandatory COVID-19 vaccination policies so long as exemptions are allowed for certain employees with disabilities or sincerely held religious beliefs.
In the event that an employee cannot be vaccinated due to a disability or sincerely held religious belief, the employer must attempt to provide that employee with a reasonable accommodation. If no reasonable accommodation is possible, the employer may exclude the employee from the workplace.
Employers must conduct a case-by-case analysis each time an individual refuses vaccination to determine whether a reasonable accommodation exists, and if not, whether it is necessary to exclude the employee. Employers who implement mandatory vaccination programs have the option of administering the vaccination themselves or requiring employees to provide proof of vaccination. Employers who choose to administer the vaccine themselves must ensure they abide by requirements under the Americans With Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA). Employers who require proof of vaccination do not have this burden and only need to be sure that employees do not provide any “back-up” medical information as part of their proof.
To be clear, while the EEOC allows employers to implement mandatory vaccination policies, employers are not currently required to adopt such policies. At this time, New York State, New York City, nor their agencies have issued any guidance or requirements regarding mandatory vaccination policies.
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If you have questions or would like additional information, please contact Ilan Weiser (iweiser@egsllp.com) or the primary EGS attorney with whom you work.
