UPDATED: NEW EEOC GUIDANCE
The EEOC Says Employers Can Require COVID-19 Vaccinations, Provides Additional Related Employment Law Guidance
by Mark Zeidman, Attorney/Shareholder
As part of its ongoing employer guidance related to mandatory COVID-19 vaccination policy issues, the Equal Employment Opportunity Commission (EEOC) recently announced that employers can, in fact, implement mandatory COVID-19 vaccination policies for employees, with certain caveats.
Here is a summary of the key points:
- Employees can be required to receive the COVID-19 vaccine, once available, as a condition of employment.
- Employers must make a concerted attempt to accommodate employees who may refuse to get the vaccine due to religious beliefs or medical disability.
- An employer may prohibit an unvaccinated employee from entering the workplace if there is a direct threat presented by their presence there. The employer cannot automatically terminate the employee, but may assess whether other accommodations, such as remote work, can be provided.
- If an employer determines, based on evidence, that an unvaccinated employee presents a direct threat to the health and safety of persons in the workplace that cannot be reduced or eliminated through a reasonable accommodation, the employer can exclude the employee from the workplace.
More details of the revised guidance are outlined below.
- The availability of COVID-19 vaccinations may raise questions about the applicability of various Equal Employment Opportunity (EEO) laws, including the Americans with Disabilities Act (ADA) and the Genetic Information Non-Discrimination Act (GINA).
- An employer that administers a COVID-19 vaccine isnot performing a “medical examination” according to the ADA because the employer is not seeking information about the employee’s current health status. The guidance further clarifies that administering the vaccine or requiring employees to provide proof of vaccination does not implicate GINA because an employee’s genetic information is not being used to make employment decisions. Also, the employer is not collecting genetic information on the employee.
- Even though administration of the vaccine is not a “medical examination” under the ADA, the guidance notes that, according to the U.S. Centers for Disease Control and Prevention (CDC), health care providers should ask certain pre-vaccination screening questions to ensure there is no medical reason for a person not to receive the vaccine. These questions may constitute a “medical examination” under the ADA because they could reveal a person’s disability status.
- Accordingly, if an employer requires employees to answer these screening questions that are disability-related, the employer must show that the questions are job-related and consistent with business necessity. This can be shown if the employer has a reasonable basis to believe, based on evidence, that an employee who does not answer the questions – and therefore does not receive the COVID-19 vaccine – is a direct threat to his own health or safety or that of others. Employers should evaluate four factors to determine 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.
- The imminence of the potential harm.
- The guidance further notes that these pre-vaccination screening questions could implicate GINA to the extent they elicit disability-related information yet notes that it is unclear at this time what potential genetic conditions will be included in the screening checklists for vaccine contraindications.
- Although asking screening questions before giving the COVID-19 vaccination may be a disability-related inquiry, asking or even requiring employees to show proof they received a COVID-19 vaccine is not a prohibited inquiry under the ADA because it is not likely to elicit information about an employee’s disability status. Employers who ask employees to provide proof of vaccination should exercise caution to ensure that the information the employee provides does not disclose any medical information beyond proof of vaccination.
- The ADA allows employers to exclude employees from the workplace who present a direct threat to the health or safety of persons in the workplace. Therefore, an employer can require that employees be vaccinated to reduce that threat. However, some employees may be unable to receive the vaccine due to medical conditions.
- Before excluding that employee from the workplace, the employer must show that the unvaccinated employee presents a risk of harm to health or safety that cannot be eliminated or reduced through reasonable accommodations. In other words, the employer must try to accommodate an employee who cannot receive the vaccine because of a disability unless there is no reasonable way to do so.
- The employer can exclude the employee from the workplace only after conducting the analysis and concluding that the disabled employee cannot be reasonably accommodated. That does not mean that the employer can terminate the employee’s employment. Rather, it means that the employer will have to determine if other accommodations can be provided to allow the employee to continue working, such as permitting the employee to work remotely or having the employee work in another location on-site where the threat is reduced or eliminated.
- Employers also must 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. If that is the case, the employer can exclude the employee from the workplace, but as with disabled employees, cannot terminate the employee and must determine if any other accommodations can be provided to permit the employee to continue working.
If a large number of employees refuse to get the COVID-19 vaccine, the employer will likely be put in a difficult position. Rather than enforcing mandates, an employer may want to take a softer approach by encouraging and incentivizing employees. Communicating clearly with employees about the vaccination and introducing a vaccine education program could help, along with paid time off to recover from any side effects of the vaccine. There are anecdotal stories in the media now about the reluctance of some workers to take the vaccine because of potential side effects which may cost them hours or days off work. This can be addressed by an employer proactively. Additionally, management should lead by example and get the vaccine first to illustrate that everyone within the organization is “on board.”