EEOC Provides Guidance on Employer Mandated COVID-19 Vaccination
On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) provided updated guidance on the subject of vaccines in the wake of the Food and Drug Administration’s (FDA) authorization of the Pfizer/BioNTech and Moderna vaccines for emergency use. The guidance sets out the framework by which employers can implement and enforce mandatory COVID-19 vaccination policies for employees. The EEOC guidance suggests (but does not explicitly state) such policies are not unlawful as long as the employer (i) follows accommodation requirements under the ADA and Title VII such as the need to provide reasonable accommodations for disabilities, pregnant workers and sincerely-held religious beliefs and (ii) determines the proper scope and permissibility of pre-vaccination medical screening questions. Here are the key takeaways:
A vaccine is not a medical examination and asking employees or requiring proof of vaccination is not a disability-related inquiry that implicates the Americans with Disabilities Act (ADA). However, if an employee indicates they did not receive the vaccine, employers should be careful not to ask why they did not receive it, because that could be a prohibited disability-related inquiry unless the employer can show that the questioning was job related and consistent with business necessity. Employers who ask employees to provide proof of vaccination also should exercise caution to ensure that the information the employee provides does not disclose any medical information beyond proof of vaccination.
Pre-vaccination screening questions recommended by US Centers for Disease Control and Prevention (CDC), however, may constitute a disability-related inquiry under the ADA because they are likely to elicit information about a disability. If an employer administers the vaccine or a contractor does so on its behalf, the employer must show that such pre-screening questions are job-related and consistent with business necessity, i.e., show that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of themselves or others. Employers can avoid this direct threat analysis by allowing employees to receive a vaccine from a third-party medical provider that is not a contractor of the employer or by making vaccination voluntary. Similarly, employers should avoid asking questions that may reveal genetic information such as questions regarding the immune systems of family members because doing so could violate the Genetic Information Nondiscrimination Act (GINA).
Employers can require that employees receive the COVID-19 vaccine (once it is available) as a condition of returning to, or remaining in, the workplace. However, employers must attempt to accommodate employees who, due to medical disabilities, pregnancy or sincerely-held religious beliefs, decline or refuse to receive the vaccine.
Employers can exclude an unvaccinated employee from the workplace if the employer determines, based on objective evidence, that the presence of an unvaccinated employee presents a direct threat due to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. Employers must assess four factors in making this determination: 1) the duration of the risk presented by the unvaccinated employee; 2) the nature and severity of the potential harm presented by the unvaccinated employee’s presence in the workplace; 3) the likelihood that harm will occur; and 4) how imminent that harm is to others in the workplace. Only after conducting this analysis and concluding that the disabled employee cannot be reasonably accommodated can the employer exclude the employee from the workplace.
When the employer excludes an unvaccinated employee from the workplace due to the perceived direct threat presented by their presence in the workplace, the employer may not automatically terminate the employee, but instead must assess whether other accommodations, such as permitting the employee to work, or continue to work, remotely, or having the employee work in another location on-site where the threat is reduced or eliminated.
Employers must provide reasonable accommodation to any employee whose disability prevents them from being vaccinated, unless doing so presents an undue hardship to the employer defined as significant difficulty or expense. The nature of the workforce, the employee’s position in addition to the prevalence in the workplace of workers who have already obtained a vaccination and the potential contact of an unvaccinated worker with others whose vaccination status is unknown should be taken into consideration, according to the EEOC guidance.
Employers must also accommodate employees whose sincerely-held religious beliefs prevent them from receiving the COVID-19 vaccine, unless doing so would present an undue hardship to the employer. Employers do not have to accommodate secular or medical beliefs about vaccines. Employers may exclude the employee from the workplace, but, as with disabled employees, cannot automatically terminate the employee and must determine if any other accommodations can be provided to permit the employee to continue working. The EEOC guidance provides employers should normally assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief. However, if the employer has an objective basis for questioning the religious nature or sincerity of the belief, the employer can request documentation. As with disability accommodations, employers must explore other potential accommodations prior to termination.
Employers should remember it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.
The COVID-19 vaccine is here and may be widely available within the next few months. Employers should start thinking about whether they will recommend or require their employees get vaccinated, keeping in mind that new guidance may become available or existing guidance may change as we learn more about the new vaccine.
If you have any questions regarding the EEOC guidance, please contact me at or 503-595-6112.