EEOC Publishes Guidance on COVID-19 Vaccination

As COVID-19 vaccination finally becomes a reality, employers are starting to consider workplace policies and programs for their employees…

As COVID-19 vaccination finally becomes a reality, employers are starting to consider workplace policies and programs for their employees. While the vaccine represents a light at the end of the tunnel, it may also lead to legal headaches.

In recent guidance, the Equal Employment Opportunity Commission (EEOC) addressed legal requirements under the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act that employers should take into account before establishing a mandatory vaccine requirement and/or administering the vaccine in the workplace. The guidance was added to the EEOC’s publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” which has been regularly updated throughout the pandemic.

Mandatory COVID-19 Vaccination

While employers may legally require COVID-19 vaccination, the EEOC guidance notes that employers must have procedures in place for workers who can’t receive the shot because of an underlying disability or because of their religious beliefs.

As the EEOC guidance explains, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, 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.” Under 29 C.F.R. 1630.2(r), employers must conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and 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,” the guidance states. “If an employer determines that an individual who cannot be vaccinated due to disability poses 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 (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.”

If an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation unless it would pose an undue hardship under Title VII. As we have discussed in prior articles, “undue hardship” is defined as having more than a de minimis cost or burden on the employer. As the EEOC notes, its existing guidance advises that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer may be justified in requesting additional supporting information.

As highlighted by the EEOC, the lack of a reasonable accommodation does not immediately justify termination. “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,” the guidance states. “This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.” For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. 

Administering Vaccines in the Workplace

For employers who may be considering workplace vaccination programs, the EEOC advises that the administration of a vaccine itself is not a “medical examination,” which is defined as “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” However, it cautions that pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability. As explained in the guidance, if the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.” 

The EEOC guidance also addresses whether requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry. According to the EEOC, the short answer is no. “Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry,” the guidance states.

However, the EEOC advises that 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.” Accordingly, the guidance states that if an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer “may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.”

The EEOC similarly advises that pre-vaccination medical screening questions may elicit information about genetic information, such as questions regarding the immune systems of family members. Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances. Accordingly, the guidance states that “if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.”

Key Takeaway

Given the potential legal risks, employers should carefully consider whether they want to make COVID-19 vaccination mandatory for employees and/or administer the vaccine via a workplace program. As always, it is advisable to work with an experienced employment attorney who can help avoid any potential legal pitfalls.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Michael Sheppeard, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.