EEOC issues long-awaited return-to-work guidance

On Friday, May 28, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance (https://bit.ly/2SA7IX7). In its long-awaited return-to-work guidance, the EEOC answered some but not all of the questions employers have been asking since the Biden administration began rolling out the COVID-19 vaccine.

Employers can mandate vaccination

Under the federal civil rights laws, employers can require all workers physically entering a workplace to be vaccinated so long as they comply with the reasonable accommodation requirements of Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA). The policy must be administered in a nondiscriminatory manner that does not have a disparate impact on any protected group of workers.

Employers can bar nonvaccinated employees

While the guidance provides that employers must reasonably accommodate employees' disabilities or sincerely held religious beliefs, practices, or observances, the guidance does allow employers to bar employees who cannot be accommodated and whose lack of vaccination poses a "direct threat" under the ADA. This would require an "individualized assessment of the employee's present ability to safely perform the essential functions of the job," assessed with reference to the duration of the risk, the nature and severity of the potential harm, the likelihood potential harm will occur, and the imminence of the potential harm.