Employers have been asking for months whether they may mandate employees to get a COVID-19 vaccine.  According to the EEOC’s recent guidance, the short answer is “yes,” but with certain legal limitations.  Employers considering a policy on vaccinations should make sure they review this current guidance.

On December 16, 2020, the EEOC updated its Q&A guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws  with a section concerning COVID-19 vaccines.  Section K of this Q&A covers equal employment opportunity laws such as Title VII (including the Pregnancy Discrimination Act), the Americans with Disabilities Act (ADA) and Rehabilitation Act, and the Genetic Information and Nondiscrimination Act (GINA).

My colleague, Laura McKelligott Kahl, recently wrote on the topic whether employers should mandate the COVID-19 vaccine or flu-vaccine for The Employment Law Business Guide.

The recent EEOC Q&A is summarized below.

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Employers must provide a reasonable accommodation to an employee who discloses a sincerely held religious belief, practice, or observance that prevents the employee from receiving the COVID-19 vaccination unless doing so would pose an undue hardship. The EEOC cautions that the protections for religion under Title VII are broad and that employers should “assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” An employer may request supporting information when there is objective evidence questioning the sincerity of the particular belief, practice, or observance.

Employers must provide a reasonable accommodation to an employee who is unable to get the COVID-19 vaccine because of a disability.

The EEOC cautions employers who administer the vaccine to employees. Pre-vaccination screening questions may elicit information about a disability. In those cases, employers must show that such disability-related inquiries are “job-related and consistent with business necessity” by having a reasonable and objective belief that an employee will pose a “direct threat” to the health or safety of the employee or others if the vaccination is not received.  Two exceptions to the disability-related inquiries include (1) if employees are provided the vaccine on a voluntary basis and therefore the prescreening questions are answered on a voluntary basis; or (2) the vaccination is given by a third party that does not contract with the employer. The EEOC reminds employers about the confidentiality of any medical information they may obtain as part of a vaccination program

Administration of the COVID-19 vaccine to an employee by an employer is not considered a medical examination. Because vaccinations are intended to protect from the coronavirus and not seek employee health information, vaccinations are not a medical examination. (Note the guidance relating to pre-screening questions that may elicit medical information.)

Requiring an employee to provide proof of receipt of a COVID-19 vaccination does not constitute a disability-related inquiry under the ADA. The EEOC warns, however, that follow up questions about why an employee did not get vaccinated could disclose disability information. If that is the case, the ADA requires that the questions be “job-related and consistent with business necessity.”

Employers do not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information by administering vaccinations or mandating proof of vaccination. The EEOC warned, however, that employers administering the vaccine or requiring proof of the vaccine may violate GINA if an employee’s genetic information is disclosed in the process, such as family members’ medical histories. An employee’s own health care provider may make such inquiries without violating GINA.

If an employee cannot be vaccinated due to disability or religion and the employee poses a “direct threat” that cannot be reduced or eliminated by a reasonable accommodation (absent undue hardship), employers can exclude an employee from the workplace.  A “direct threat” analysis requires an individualized assessment of four factors: (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. In these circumstances, the EEOC warns employers to consider other employment laws protecting an employee before any decision is made to terminate. For example, the EEOC explains that even if an employer may exclude an employee from the workplace due to an inability to accommodate a waiver from a vaccine mandate, the employer may need to accommodate the employee by allowing remote working or the employee may be entitled to take a leave under the law or the employer’s policies.

As the COVID-19 vaccines roll-out and are more widely available, employers will be considering whether they will require employees to get a vaccine or instead strongly encourage vaccinations for its workforce.