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such maybe limited. Thus, employers must
confirm if the states where they have
employees have adopted any laws that
prohibit mandatory vaccinations.
3. If an employer requires or
merely encourages employees to
receive the COVID-19 vaccine, is
the time compensable?
If an employer merely encourages its
employees to be vaccinated, it should
also indicate that such should be done
outside of the employee’s working hours.
When the employer requires its workers
to be vaccinated, the inquiry is more
complicated and can depend on several
factors. Thus, if you adopt a mandatory
COVID-19 vaccination policy, you should
consult legal counsel to confirm if
employees will need to be compensated
for time incurred to be vaccinated.
Compensable time could include the time
incurred making the appointment as well
as the time spent to get the shot.
4. Can employers provide
incentives to employees who
receive the COVID-19 vaccine?
Aldi and Dollar General announced in
January they would compensate employees
for up to four hours of work if they
voluntarily elected to receive the vaccine.
However, the EEOC issued a proposed rule
in early January, which was intended to
clarify whether wellness incentives were
appropriate and, if so, to what extent.
The proposed rule limits incentives to de
minimis awards, indicating “a water bottle
or a gift card of modest value” would be
an example of a small award. On Feb. 1,
2021, 42 business groups sent a letter to
the EEOC requesting the EEOC clarify
the extent employers may offer employees
incentives without violating the ADA and
other laws and urged the EEOC to adopt
a broad definition of what is permissible.
5. If an employer requires
employees to receive a COVID-19
vaccine, how should an employer
respond to an employee who
indicates they cannot receive the
vaccine due to a disability or a
sincerely held religious belief?
Even though an employer may require
employees to be vaccinated, employers
still have a duty under the law to
accommodate employees who request an
accommodation based on the employee’s
disability or the employee’s sincerely held
religious belief or practice or observance,
as long as the accommodation does
not cause an undue hardship. “’Undue
hardship’ means significant difficulty or
expense and focuses on the resources and
circumstances of the particular employer
in relationship to the cost or difficulty
of providing a specific accommodation.”
When determining whether a reasonable
accommodation is an undue hardship, it
is recommended that you seek legal advice
to ensure you act in accordance with the
law. Employers and employees should
engage in an interactive process whereby
they identify workplace accommodations
that do not cause an undue hardship on
the employer.
Disability
If an employer’s mandatory vaccination
policy precludes an employee with
a disability from being employed, “the
employer must show that an unvaccinated
employee would pose a direct threat due
to a ‘significant risk of substantial harm’
to the health or safety of the individual
or others that cannot be eliminated or
reduced by reasonable accommodation.”
Once an employee with a disability
advises an employer they are unable to be
vaccinated due to a disability, the employee
with a disability and the employer should
engage in an informal, interactive dialogue
to clarify what the employee needs and
identify an appropriate workplace
accommodation that would not cause an
undue hardship on the employer.
Religious belief
Per the EEOC guidance, if an employee
advises its employer that the employee’s
sincerely held religious belief, practice
or observance prevents the employee
from receiving the vaccination, the
employer, similar to when an employee
is disabled, must provide a reasonable
accommodation unless doing so would
pose an undue hardship under Title VII.
However, the “undue hardship” standard
used for purposes of ADA differs from the
standard applied by the courts for purposes
of determining a religious accommodation
under Title VII. For purposes of religious
discrimination, courts have defined
“undue hardship” as having more than a
de minimis cost or burden to the employer.
As noted in the EEOC guidance,
it is also important for managers and
supervisors to remember “it is unlawful
to disclose that an employee is receiving
a reasonable accommodation or retaliate
against an employee for requesting
an accommodation.”
6. What if an employer cannot
exempt an employee or provide
a reasonable accommodation to
an employee who is unable to
comply with employer’s mandatory
vaccine policy due to a disability or
a sincerely held religious practice
or belief?
The EEOC guidance provides, “if an
employee cannot get vaccinated for
COVID-19 because of a disability or
sincerely held religious belief, practice or
observance, and there is no reasonable
accommodation possible, then it would
be lawful for the employer to exclude the
employee from the workplace.” However,
the EEOC notes “this does not mean
the employer may automatically terminate
the worker. Employers will need to
determine if any other rights apply under
the EEO laws or other federal, state and
local authorities.”
7. Can employers require
employees to provide proof
of vaccination?
The EEOC guidance indicates an employer
may request or require an employee to
provide proof they received a COVID-19
vaccination from a provider. The EEOC
also confirms such inquiry is not a
disability-related inquiry under the ADA;
however, the EEOC warns other related
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