New EEOC Guidance: What Employers Should Know About Requiring Employees to Receive a COVID-19 Vaccination

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance to employers regarding COVID-19 vaccination programs for their employees.  The EEOC's guidance does not directly address whether mandatory vaccination policies are lawful; however, its series of questions and answers is predicated on the assumption that an employer has implemented a mandatory vaccination policy.  Based thereon, it may be inferred that the EEOC has taken the position that mandatory vaccination policies are lawful, provided certain conditions are met.  As new information regarding COVID-19 vaccinations is obtained, the EEOC and other federal agencies may issue additional or revised guidance.

The EEOC's new guidance informs employers and employees of the legal requirements of the Americans with Disabilities Act (ADA),[1] Title VII of the Civil Rights Law of 1964 (Title VII),[2] and the Genetic Information Nondiscrimination Act (GINA),[3] and how these laws may interact with a COVID-19 vaccination policy.  Based on the EEOC's guidance, employers adopting mandatory vaccination policies may be obligated to provide exemptions or accommodations to certain employees, including those with religious objections to vaccines, pregnant workers,[4] and employees with disabilities that may prevent them from obtaining a vaccination.

In general, the ADA prohibits an employer from requiring a medical examination or making inquiries of an employee as to whether that employee is an individual with a disability, or as to the nature or severity of a disability, unless such examination or inquiries are both "job-related and consistent with business necessity."  The EEOC's guidance provides that neither the administration of a COVID-19 vaccine nor the requirement that an employee show proof of vaccination are, in and of themselves, a "medical examination" or "disability-related inquiry," and, therefore, do not implicate the ADA.  Thus, simply requesting that an employee provide proof of vaccination may not trigger employer obligations under the ADA.  There are several important caveats of which employers should be aware, however.

Pre-Vaccination Screening Questions May Implicate the ADA and GINA

In some circumstances, pre-vaccination medical screening questions may implicate the ADA and GINA. 

According to the Centers for Disease Control and Prevention, health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason why a person should not receive the vaccination.  If an employer requires an employee to receive the vaccination from the employer directly (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, these questions are subject to the ADA standards for disability-related inquiries. This means that such questions, if asked by the employer or a contractor on the employer's behalf, are "disability-related" under the ADA.  The employer must then show that these disability-related screening questions are "job-related and consistent with business necessity."  To meet this standard, an employer must 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 her or himself or others."

Additionally, if pre-vaccination questions include questions about genetic information, then employers that want to ensure their employees have been vaccinated may wish to request proof of vaccination instead of administering the vaccine themselves.  Although GINA does not prohibit an individual employee's own health care provider from asking questions about genetic information, GINA does prohibit an employer or a doctor working for the employer from asking questions about genetic information.

Employers Must Determine If a Reasonable Accommodation Can Be Made for an Unvaccinated Employee

As mentioned above, the EEOC's guidance implies that requiring vaccination as a condition of returning to the workplace may be lawful if certain conditions are met.  An employer cannot simply exclude unvaccinated employees from the workplace, however.  Rather, an employer "must show that [the] 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.'"  The EEOC's guidance further advises employers to conduct an "individual assessment" in determining whether a direct threat exists, based on the following four factors:  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.  The EEOC's guidance states, "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 employer determines that an unvaccinated worker does pose a direct threat, the employer cannot exclude that employee from the workplace "unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat." The EEOC describes an "undue hardship" under the ADA as a "significant difficulty or expense."  The EEOC's guidance provides that an employer must consider possible options for accommodation based on the nature of its workforce and the employee's particular position.  Reasonable accommodations that employers might consider on an individualized basis include, for example, working remotely, using leave under other laws or the employer's existing leave policy, and working under existing COVID-19 protocols (e.g., social distancing, wearing a mask, hand washing, etc.).  The foregoing list is non-exhaustive and for illustrative purposes only, as it may be inapplicable to certain situations.  Determining whether an accommodation is reasonable is a fact-specific analysis.  The EEOC's guidance recommends a "flexible, interactive process" between employers and employees "to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense)."  The guidance further advises that the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the extent of contact with other individuals, whose vaccination status may be unknown, may impact the undue hardship consideration.

Employers should also be aware that the EEOC's guidance states that an employer is required to accommodate employees who have a sincere religious belief that prevents them from being vaccinated, unless doing so would pose an "undue hardship" on the employer, as defined in Title VII.  With regard to religious accommodations under Title VII, the "undue hardship" standard differs from, and is less stringent than, the ADA's. Under Title VII, to successfully invoke "undue hardship," an employer must show that providing an accommodation imposes "more than a de minimis cost or burden on the employer."  The EEOC's guidance explains 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 an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

If an employee cannot get vaccinated against 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 EEOC's guidance explicitly states that this does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the Equal Employment Opportunity (EEO) laws or other federal, state, and local laws.

Key Takeaways for Employers

As guidance regarding COVID-19 vaccinations continues to evolve, employers should be ready to revise current policies, if already implemented, or adopt new policies that align with the latest information.

Although EEOC's guidance on COVID-19 vaccines implicitly approves of mandatory vaccines under certain conditions, there is no legal authority to require vaccines for all employees under all circumstances. Therefore, employers should understand the EEOC's position on vaccinations, including the additional requirements for employers that mandate, rather than encourage, vaccines and for employers that administer the vaccines directly or through a contracted provider, rather than require proof of vaccination from a third party.

Employers should also understand the EEOC's guidance regarding the limitations on workplace vaccines under EEO laws, including the ADA, Title VII, GINA, and the Pregnancy Discrimination Act that amends Title VII.

Employers may want to consult with legal counsel to make an informed decision as to whether a mandatory vaccination policy is appropriate for their business.  Please contact Laura L. Spring at CCBLaw to discuss the best options for your business.

[1] The ADA prohibits discrimination against individuals with disabilities in several areas, including employment, transportation, public accommodations, communications and access to state and local government programs and services.

[2] Title VII prohibits employment discrimination based on race, color, national origin, religion, and sex, including pregnancy.

[3] GINA prohibits the use of genetic information in making employment decisions; restricts employers and other covered entities from requesting, requiring or purchasing genetic information; and strictly limits the disclosure of genetic information.

[4] Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work. A pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.