Some business sectors have required immunizations for other diseases in the past, he said.
“Historically, health care providers regularly required their employees to get flu vaccines, for instance,” he said. “That’s really nothing new in the health care space. They would recognize exceptions for a disability or religious accommodation. Then, if you wouldn’t get the vaccine you would have to wear a mask. That was the primary accommodation.”
A wrinkle in the EEOC instruction, Thrutchley said, is an exception to the exception. Under the ADA, an employer can have a workplace policy that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”
And the EEOC guidance states that COVID-19 does pose a direct threat.
“So, basically what that does for the employer is that it adds another step to the analysis,” Thrutchley said.
On whether a direct threat exists, the employer should consider four factors: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.
“One possible option would be just allow them to continue to work remotely if it’s somebody who’s in a position that’s able to remote work,” Thrutchley said.