As the COVID-19 vaccine rollout continues in El Paso and nationwide, there is new guidance for U.S. businesses weighing vaccine mandates for employees and customers.

The U.S. Equal Employment Opportunity Commission released guidance last month on how to navigate the coronavirus and Americans with Disabilities Act, and how employers and workers can approach possible vaccine mandates.

Businesses are generally allowed to require vaccinations for employees, according to the EEOC guidance, but accommodations must be made for those who choose not to take the vaccine due to a disability under the ADA, or for those with a sincerely held religious belief, practice or observance.

C.B. Burns, a partner at Kemp Smith law firm in El Paso, said some of the biggest takeaways from the EEOC guidance for businesses is that they need to think about how to possibly accommodate those who cannot take the vaccine for the two reasons above.

Possible accommodations could include the employee continuing to work remotely.

“If you can’t accommodate, you ultimately have the right to send the employee home,” Burns said. “(The EEOC) doesn’t want them terminated, but they do have the right to not allow them to work.”

The EEOC guidance states that “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.”

In terms of a national vaccine mandate, that would have to be done through Congress enacting a law, which Burns said was unlikely.

But there is precedent for different places requiring vaccines. Most children are required to take a list of vaccines to attend school, and some health care facilities require things like flu shots and tuberculosis tests.

The EEOC guidance states that it’s not a disability-related inquiry to ask an employee for proof of vaccination, but that further questions, such as why, could be and would be subject to standards of the ADA.

There have also been national stories about airlines and private concert venues, including Ticketmaster, considering plans for requiring proof of vaccination to board planes or attend events.

Burns said these private businesses have the right to do so.

“I think we’ll see how that goes,” Burns said. “There’s development of apps for your phone, scanning barcodes, that’s all in development. But ultimately it’s legal if that’s the way they choose to go.”

Burns said she expects someone will try to challenge possible vaccine mandates, but that it will likely be difficult.

“At least there’s precedent for requiring vaccines in different industries,” Burns said. “Just because of how prevalent this virus is, how easy it is to spread, it’s going to be harder to challenge a vaccine requirement, if an employer wants to go that way.

She added, “I think employees, individuals are going to have a difficult time challenging a vaccine mandate by an employer, other than based on if they have a disability or a religious objection.”


Email El Paso Inc. reporter Sara Sanchez at sesanchez@elpasoinc.com or call (915) 534-4422.

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