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EEOC Issues Guidance on Mandatory COVID-19 Vaccination for Employees

December 23, 2020


With the FDA’s recent Emergency Use Authorization of two COVID-19 vaccines, many employers view vaccines as a key component to safely bring employees back to the workplace in 2021.  Employers have had several questions concerning whether employers may directly provide COVID-19 vaccines to employees or even require employees to be vaccinated as a condition of employment.  The United States Equal Employment Opportunity Commission (“EEOC”) answered some of these questions in recently issued guidance, which supplemented its prior guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws”.

Key Takeaways

Although the EEOC’s guidance does not directly state whether employers may adopt mandatory vaccination policies, the questions and answers covered by the guidance are premised on the assumption that an employer has adopted a mandatory vaccination policy.  The guidance, therefore, strongly suggests that employers may implement mandatory vaccination policies prior to permitting employees to return to the workplace.

Nevertheless, prior to implementing a mandatory vaccination policy, employers should be mindful that various laws may require exemptions or accommodations to employees who cannot receive a vaccine because of disabilities, religious objections, or other reasons.  In addition, employers must carefully consider compliance with several laws if the employers, themselves or through contracted third parties, are providing the vaccinations to employees.  In an effort to address these concerns, the EEOC’s Guidance also describes several considerations under the Americans with Disabilities Act (“ADA”), Title VII, and Title II of the Genetic Information Nondiscrimination Act (“GINA”).

Vaccines and the ADA

The ADA generally restricts employers from conducting “medical examinations” of employees, but the EEOC’s guidance makes clear that vaccines themselves are not “medical examinations” under the ADA.  As a result, employers do not need to demonstrate that a vaccine is “job related” and “consistent with business necessity.”  Similarly, the EEOC noted that simply requiring employees to produce proof of the receipt of a COVID-19 vaccine is not a disability-related inquiry under the ADA.

For employers who are administering the vaccine to employees or contracting with a third-party to administer vaccines, pre-screening questions may implicate the ADA’s provision on disability-related inquiries.  Such pre-screening questions generally ask whether there is any medical reason why an individual cannot receive the vaccination and, thus, may elicit information about a disability.  If an employer is administering the vaccine or contracting with a third-party to administer the vaccine to employees, the employer must show that the pre-screening questions are “job-related and consistent with business necessity.”  To satisfy this standard, employers must have a “reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, will pose a direct threat to the health or safety of her or himself or others.”

There are two circumstances where such pre-screening questions could be asked without satisfying these requirements: (1) if a vaccine is offered to employees on a voluntary basis and (2) if the employee receives a vaccine from a third-party that has not contracted with the employer.

Employees Who Cannot Receive a Vaccine Because of a Disability

The EEOC also made clear that employees who cannot receive a vaccine due to a disability must be accommodated to the extent required by applicable law.

When faced with a request to be excused from a vaccine requirement because of an employee’s disability, prior to excluding the employee from the workplace, 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 a reasonable accommodation.’”  Employers must conduct an individualized assessment of the following four factors to determine whether the unvaccinated employee would present a direct threat:

  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.

The EEOC stated that “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.”

Once an employer determines that an unvaccinated employee poses a “direct threat”, the employer must then consider whether any reasonable accommodation may exist absent undue hardship (including, permitting the employee to work remotely if possible).  Employers should also consider whether the employee is entitled to leave or any other rights under any other federal, state, or local law.

Employees with Religious Objections to Vaccines

The EEOC also made clear that if an employee informs the employer that he or she cannot receive a vaccine because of a sincerely held religious belief, practice, or observance, the employer must provide a reasonable accommodation, unless it would pose an undue hardship under Title VII.  Under Title VII, an “undue hardship” requires a showing of having more than a de minimis cost or burden on the employer.  Moreover, while an employer should ordinarily assume that an employee’s request to be excused from a mandatory vaccine policy is based on a sincerely held religious belief, if the employer has an objective basis for questioning the religious nature or sincerity of the request, the employer may request additional supporting information.

Vaccines and GINA

The EEOC’s guidance clarifies that mandatory COVID-19 vaccination policies and administering vaccines to employees does not generally implicate Title II of GINA.  Title II of GINA prohibits employers from (1) using genetic information to make employment decisions, (2) acquiring genetic information except in narrow circumstances, and (3) disclosing genetic information except in narrow circumstances.  Nevertheless, as under the ADA, pre-screening questions may implicate GINA.

Other considerations

The EEEOC’s guidance does not take any position regarding whether employers should institute mandatory vaccination programs or require vaccines before permitting employees in the workplace.  Whether and when to institute any such policy, and whether to provide the vaccines or require employees to obtain the vaccines from third parties, is a fact-sensitive question that should consider the nature and needs of the business.  In addition, if requiring COVID-19 vaccines, employers must train supervisors and managers to recognize an accommodation request because of a disability or religious belief.  Prior to instituting a COVID-19 vaccination requirement, employers should also consider whether such a requirement implicates employee rights under other laws not covered by the EEOC’s guidance, such as the Occupational Safety and Health Act, the National Labor Relations Act, and similar state laws.

Prior to implementing a mandatory vaccine requirement or providing vaccines to employers, employers should work with legal counsel to ensure that their actions comply with all applicable laws.  If you have any questions regarding the EEOC’s guidance or other considerations before instituting a mandatory vaccine program for employees, Montgomery McCracken’s Labor and Employment attorneys are available to assist.