December 22, 2020

EEOC Issues New Guidance Regarding COVID-19 Vaccine Mandates in the Workplace

Over the last several weeks, there has been no shortage of news coverage regarding the FDA’s emergency use authorization of one, and now two, COVID-19 vaccines.  With medical personnel first to receive “shots in the arm” and now the announcement of older Americans and essential front-line workers next on the priority list, attention for many has turned to whether employers may require its workers to receive the vaccine, once readily available.  Late last week, the EEOC has weighed in with much anticipated updated guidance on the issue.

First, the EEOC has confirmed that if a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a “medical examination” under the Americans with Disabilities Act (ADA).  This determination presumably relieves employers of the obligation to demonstrate that requiring the vaccine is specifically “job-related and consistent with business necessity.”

However, according to the CDC, health care providers should ask certain questions before administering a vaccine to ensure no medical reasons exist that would prevent the person from receiving the vaccination.  Per the EEOC, those pre-vaccination questions are likely to elicit information about a disability and if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA.  Thus, if the employer requires an employee to receive the vaccination, administered by the employer, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”  To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, 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 herself or himself or others. 

To avoid the need to satisfy the “job-related / business necessity” requirement, an employer may offer the vaccination to employees on a voluntary basis, thereby rendering the employee’s decision to answer the pre-screening disability-related questions likewise voluntary.  If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.  Secondly, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.

Interestingly, the EEOC states that asking or requiring an employee to show proof of receipt of a COVID-19 vaccine is not a disability-related inquiry and is therefore not prohibited by the ADA.  However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”  As long as the proof of a vaccination does not include any other medical information though, the ADA would not be implicated.

Regarding vaccine mandates in the workplace, employers may ensure that employees not pose a direct threat to the health or safety of other individuals in the workplace.  While employers may include a vaccination requirement as part of this “safety-based qualification,” an issue would arise if doing so screens out an individual who is not able to receive the vaccine due to a disability.  The EEOC also exempts individuals who refuse the vaccination due to sincerely-held religious beliefs.  In those instances, the employer must show that an unvaccinated employee would pose 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 should conduct an individualized assessment of four factors in determining whether a direct threat exists:  (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If an individual who cannot be vaccinated due to disability or refuses to do so as a result of a sincerely-held religious belief is determined to pose a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.  As an aside, employers should ordinarily assume that an employee's request for religious accommodation is based on a sincerely-held religious belief.  However, an employer may seek additional supporting information if it has an objective basis for questioning either the religious nature or the sincerity of a particular belief or practice.

If no reasonable accommodation exists, then it would be lawful for the employer to exclude the employee from the workplace.  However, this does not mean the employer may automatically terminate the worker.  For example, the employee may be entitled to accommodations such as performing the current position remotely.  This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms.  Some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

There is certainly quite a bit of information contained in the EEOC’s recent updated guidance.  We recommend that employers consider how they will address these issues even before vaccines become readily available.

Please feel free to reach out to one of our Employment Law attorneys at 1-888-488-2638 to discuss the implementation of a policy and protocol.