Independent of the Biden Administration’s private-employer COVID-19 vaccine-or-test mandate, many employers either have adopted or plan to adopt their own mandatory vaccine policies to reduce the spread of COVID-19 in the workplace. While some employers suspended their mandatory COVID-19 vaccine policies and plans after the U.S. Supreme Court blocked the administration’s private-employer mandate, others are considering whether to keep their policies and plans in place. The absence of a federal mandate provides private employers the flexibility to tailor their vaccination policies to their own workplace-specific challenges and determine how they should be enforced. 

Permissible Mandates

Guidance from the Equal Employment Opportunity Commission (EEOC) confirms that federal workplace antidiscrimination laws do not prohibit private employers from requiring employees physically entering the workplace to be vaccinated for COVID-19, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII). The ADA and Title VII require employers mandating COVID-19 vaccination to provide reasonable accommodations for employees who cannot be vaccinated due to a disability or a sincerely held religious belief, practice or observance, absent an undue hardship to the employers’ business operations. The EEOC guidance cautions that questions of unequal treatment could arise if employees who are unable to receive a vaccine for a legally protected reason are treated less favorably than employees who are able to get the vaccine. A mandatory vaccination policy also could negatively impact certain individuals or demographic groups that face greater barriers to obtaining vaccinations. 

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