Reason Roundup

Employers Can Require Workers To Get COVID-19 Vaccine, Says EEOC

Plus: The best International Whores' Day writing, FIRE fights expansive interpretation of critical race theory law, and more...

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zumaamericasthirtyone134814 | Paul Christian Gordon/ZUMAPRESS/Newscom
(Paul Christian Gordon/ZUMAPRESS/Newscom)

U.S. employers may require existing workers and new hires to be vaccinated against COVID-19, per new guidance from the Equal Employment Opportunity Commission (EEOC). Companies can also offer their employees incentives to get vaccinated, the EEOC said. The legality of such moves was previously unclear.

Federal labor laws "do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the [Americans With Disabilities Act] and Title VII of the Civil Rights Act of 1964 and other EEO considerations," said the commission.

Nor do federal laws "prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic."

In addition, "employers that are administering vaccines to their employees may offer incentives for employees to be vaccinated, as long as the incentives are not coercive," the EEOC stipulated.

Coercive in this case can be fairly open to interpretation—and lawsuits.

"What is 'coercive' is unclear because, just as with anything else, one person's view of what is a coercive incentive is not the same as another person's," employment attorney Helen Rella told CBS News. "You might find an incentive of $100 coercive and another person might find an incentive of $10,000 coercive. That's where the door is left open [where] we don't have the detailed guidance we were hoping to receive."

There are some circumstances in which an employer cannot require an employee to be vaccinated:

In some circumstances, Title VII and the ADA require an employer to provide reasonable accommodations for employees who, because of a disability or a sincerely held religious belief, practice, or observance, do not get vaccinated for COVID-19, unless providing an accommodation would pose an undue hardship on the operation of the employer's business. The analysis for undue hardship depends on whether the accommodation is for a disability (including pregnancy-related conditions that constitute a disability) (see K.6) or for religion (see K.12).

As examples of reasonable accommodations, the EEOC says that "an unvaccinated employee entering the workplace might wear a face mask, work at a social distance from coworkers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally, accept a reassignment."

The EEOC also cautions that "it would also be unlawful to apply a vaccination requirement to employees in a way that treats employees differently based on disability, race, color, religion, sex (including pregnancy, sexual orientation and gender identity), national origin, age, or genetic information, unless there is a legitimate non-discriminatory reason."

In previous pandemic-related guidance, the EEOC specified that employers "may choose to administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically to determine if their presence in the workplace poses a direct threat to others." However, "requiring antibody testing before allowing employees to re-enter the workplace is not allowed."

FOLLOW-UP

Sex workers still calling for decriminalization and destigmatization. Yesterday was "International Whores' Day," a day commemorating the start of the modern sex worker rights movement. Here are some of the day's best writings, talks, and threads:

https://twitter.com/SavannahSly/status/1400171511420313601

FREE MINDS

An Oklahoma college drops "race and ethnicities" course because of critical race theory law. The Foundation for Individual Rights in Education (FIRE) explores how laws banning "critical race theory" could chill all sorts of race-related speech on college campuses:

On May 18, Oklahoma City Community College adjunct professor Melissa Smith received an email — her fully enrolled summer course on "race and ethnicities" had been cancelled because it was "facing challenges (and specific complaints) in light of HB 1775."

In the sociology course, which Smith has been teaching for several years, students "examine[] sociological theories of contact between minority and majority groups in a multicultural society, including topics such as prejudice, discrimination, acculturation, and pluralism."

In a statement to the Washington Post, college spokesperson Erick Worrell said the course had been cancelled because Oklahoma HB 1775, signed by Governor Kevin Stitt on May 7, "would require substantial changes to the curriculum" for Smith's course because HB 1775 "essentially revokes any ability to teach critical race theory, including discussions of white privilege" in required courses.

But, as FIRE pointed out in a letter to the college today, the new law doesn't actually mandate that any college courses be cancelled or their curricula altered.

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We don't need more publicly funded media in the U.S.:

QUICK HITS

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• "Porn makes for an easy target," writes Olga Khazan. "But legislators focused on labeling it as a public-health crisis should consider what problems they are actually trying to solve."

• Biden's $6 trillion budget plan is even more expensive than it looks, warns Peter Suderman.

• Pennsylvania is considering a bill that would give amnesty to sex workers and sex trafficking victims who report crimes.

• "Cincinnati police are changing their policy for no-knock warrants and eliminating their use unless someone is at risk of serious harm," the city has announced.