With several promising vaccinations for the COVID-19 virus scheduled to be released to the public over the next few months, many businesses have been wondering how they can speed up the return to some semblance of normalcy, and particularly what steps they can take to encourage or require their employees to be vaccinated.

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued updated COVID-19 guidance addressing vaccination programs and policies in the employment context. As a general matter, no federal law prohibits employers from encouraging or facilitating vaccinations for their employees, or even requiring that employees be vaccinated as a condition of employment. However, mandatory vaccination policies by employers implicate concerns under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII), and the Genetic Information and Non-Discrimination Act (GINA), and employers should take care to avoid violating employees’ rights with respect to any vaccination program.

Permissive Vaccination Programs

Employers may certainly encourage or offer incentives to their employees to voluntarily receive a COVID-19 vaccination, without implicating any federal employment statute. Employers need to tread more carefully, however, if they plan to administer the vaccine themselves or to contract with a third party to administer vaccines to their employees. 

Under the ADA, an employer may not require medical examinations or make disability-related inquiries of employees unless such inquiries are “job-related and consistent with business necessity.” Helpfully, the EEOC has clarified that when employers provide vaccinations to their employees on a completely voluntary basis, such that each employee has the right to refuse to answer any pre-screening questions without penalty, the ADA rules governing disability-related inquiries do not apply. 

GINA, however, prohibits employers from acquiring “genetic information” or using such information to make employment decisions. The EEOC notes that at this time, it is unclear whether the pre-screening questions asked prior to a COVID-19 vaccination are likely to elicit genetic information, including information about an employee’s family medical history. If the pre-screening questions do not elicit genetic information, then GINA does not apply. If, however, the pre-screening questions would elicit genetic information, then the safer course for employers will be to encourage employees to obtain vaccinations from their own health care providers rather than administering a vaccination program through the employer.

Mandatory Vaccination Programs

In order to institute a mandatory vaccination policy, an employer must first be able to establish that an unvaccinated employee constitutes a “direct threat” to themselves or others in the workplace. This “direct threat” standard means that an unvaccinated employee would pose a “significant risk of substantial harm to the health and safety of the [employee] or others that cannot be eliminated or reduced by reasonable accommodation.” This analysis will vary depending upon the specific workplace at issue, considering the duration, nature and severity, likelihood, and imminence of the potential harm. 

For example, an unvaccinated nurse in an assisted living facility will almost certainly pose a direct threat to other employees and residents due to the close contact required by the job and the inherent risk of COVID-19 to elderly individuals, whereas an unvaccinated employee in a fully remote workforce would not constitute a direct threat to others. However, the EEOC’s guidance makes clear than in most employment contexts other than fully remote work, the risk of transmission of COVID-19 by unvaccinated employees whose jobs bring them into contact with each other or the public will generally be sufficient to meet the direct threat standard and establish a general rule requiring employees to be vaccinated. 

Even if the direct threat of an unvaccinated employee in the workplace justifies the adoption of a mandatory vaccination policy, an employer must still provide reasonable accommodations to employees whose disabilities prevent them from receiving a COVID-19 vaccination, unless such accommodation would pose an undue hardship. An undue hardship exists if the proposed accommodation would result in significant difficulty or expense to the employer.

When weighing an accommodation request, an employer must first consider the availability of accommodations that would allow the employee to remain in the workplace, although such options are likely limited given the EEOC’s determination that the risk of COVID-19 transmission generally constitutes a direct threat.  However, it may be possible in some workplaces for an unvaccinated employee to be effectively isolated from others. If such an on-site accommodation is not possible, the employer should next consider accommodations that would exclude the employee from the workplace but still allow them to remain employed, such as a remote work arrangement or a leave of absence. 

As discussed in our earlier alert analyzing undue hardship in the context of other COVID-19-related accommodation requests, an employer’s real-world experiment with remote work over the last several months is likely to be considered strong evidence—both positive and negative—as to whether a remote work arrangement presents an undue hardship. Only after all potential accommodations have been exhausted may an employer consider terminating an unvaccinated employee.

Title VII also protects employees who refuse to receive a vaccine based on a sincerely held religious belief.  As with a disability-based refusal to be vaccinated, Title VII requires that an employer offer a reasonable accommodation for an employee’s religious beliefs unless doing so would pose undue hardship to the employer. Here, however, the undue hardship standard is somewhat lower than the standard used under the ADA, and the employer must show only that the proposed accommodation would have more than a de minimus cost or burden on the employer.

Some commentators on this topic have speculated that Food and Drug Administration (FDA) rules may also prevent employers from adopting mandatory vaccination policies. In sum, this possibility derives from an FDA rule requiring that patients receiving medical treatments approved under the FDA’s “emergency use authorization” process—the process used to approve both of the currently available COVID-19 vaccines—must be given notice that they have the “option to accept or refuse administration” of the vaccine. 

In our view, the relevant statute likely does not apply in the context of private employment, and the fact sheets the FDA recently issued on each of the COVID-19 vaccines expressly advised patients of their right to receive the same standard of medical care should they refuse the vaccine, but the FDA said nothing about freedom of consequences from private employers.

We maintain that employers may enact mandatory vaccination policies subject to the considerations discussed above. As a practical matter, concerns about FDA rules will be irrelevant for most employers, as the existing COVID-19 vaccines are likely to be approved through the FDA’s normal processes by the time the vaccines are widely available to most employees, rendering the FDA’s emergency use authorization rules moot.

While the EEOC’s updated guidance provides some additional clarity for employers, particularly in confirming that employers may generally institute mandatory vaccination policies, it emphasizes the case-by-case nature of this analysis and leaves open the possibility that mandatory vaccination rules will not be justifiable in some workplaces, such as fully remote workplaces, where employees do not need to interact with each other or the public. 

For the vast majority of workplaces, where a mandatory vaccination policy would be generally allowable, the EEOC makes clear that employers must consider making individual exceptions for employees who are unable to be vaccinated due to a disability or religious belief. Employers who elect to adopt mandatory vaccination policies should consult with counsel prior to taking any action against employees who refuse for these reasons.