As COVID-19 persists, so do disputes about vaccinations

Here are seven key takeaways from a recent Equal Employment Opportunity Commission webinar about vaccinations.

1. Stay vigilant when it comes to vaccination disputes

30 percent of all COVID-19-related EEOC charges filed by employees since April 2020 involved a vaccine dispute, according to the federal agency. Approximately 2,700 of the nearly 9,000 COVID-19 charges handled by the agency since the start of the pandemic raised workplace issues related to the vaccine. And of those, only 300 (approximately 11 percent) related to ADA issues, which means the overwhelming number of vaccine-related claims relate to religious accommodation requests or related discrimination allegations.

In analyzing recent court filings, about 20 percent of all COVID-19 lawsuits filed since the start of the year relate to vaccine disputes — and that number should continue to rise as the EEOC charges work their way through the administrative process and end up as court filings.

2. Employers can ask their workers about their vaccination status

The EEOC once again confirmed that employers can lawfully ask employees their vaccination status without violating federal anti-discrimination laws; provided, of course, the question is limited to a yes or no response. While some employers may be dropping their vaccine mandate as a condition of continued employment, many others may now be considering requesting vaccination status for a variety of other activities: for those who want to work in the office setting, those who wish to conduct business travel, those who want to attend work-related conferences or retreats, etc. The EEOC’s statement was a welcome reminder of employer rights in this area.

3. Be cautious about denying religious accommodation requests

It should come as little surprise that the EEOC — charged as the nation’s watchdog agency looking out for employee interests — warned employers during the webinar that they should generally accept a request for a religious accommodation as sincere, unless there is an objective basis to question it. This has obviously been a hot topic given the vast increase in accommodation requests related to COVID-19 vaccine mandates.

4. Employers are not required to offer a preferred accommodation

The EEOC did bolster one of the most critical aspects of the accommodation debate that is often overlooked by employers: They have no obligation to provide an employee’s preferred reasonable accommodation, so long as the accommodation offered is reasonable. So even if an employee has a legitimate religious basis for not getting the COVID-19 vaccination, that doesn’t mean the employer has an obligation to give carte blanche access to the workplace. Perhaps the employer will require the person to attend certain meetings virtually; perhaps the employee will be subject to heightened safety requirements (like constant masking at the office); perhaps the employee will need to present frequent negative COVID-19 tests. Regardless, this is a case-by-case assessment.

5. Employers should consider telework a reasonable accommodation

The EEOC spent some time focusing on one specific type of potential accommodation: teleworking (or remote work or work-from-home — however you label it). The agency noted that teleworking should be at least considered as a reasonable accommodation so long as the employee can perform essential functions of the job. It encouraged employers to look at whether teleworking was previously effective (if applicable) for that particular individual or position before coming to a conclusion about whether it should be offered in a specific situation.

6. Remember that COVID-19 might be an ADA-qualifying disability

The agency reminded employers that workers with COVID-19 can qualify as having a disability under the Americans with Disabilities Act — but not always. The webinar reiterated that the question should be handled as an individualized assessment as with just about any disability inquiry.

7. Beware of caregiver discrimination

Finally, the agency confirmed that caregiver discrimination violates Title VII if it is based on the applicant’s or employee’s protected characteristic or association with an individual with a disability (which could also serve as an Americans with Disabilities Act violation). In other words, be careful and train managers not to treat unfairly any worker who may need to take time away from work to care for individuals who may be dealing with pandemic-related issues.