On Dec. 16, 2020, the United Stated Equal Employment Opportunity Commission (EEOC) released much-anticipated guidance regarding employers’ ability to enact mandatory COVID-19 vaccination policies. 

The new guidance addresses many questions regarding the interaction between mandatory vaccination policies and the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1963 (Title VII), and the Genetic Information Nondiscrimination Act (Act). However, employers should be cognizant that states and localities may have their own anti-discrimination or privacy laws, which may provide additional protections to employees.

A summary of the EEOC’s guidance is located below. 

Is a COVID-19 vaccination a medical examination under the ADA?

No, administration of the COVID-19 vaccine is not a “medical examination” as defined by the ADA. However, pre-screening questions for the COVID-19 vaccination, which solicit information about a disability or health condition, may implicate the ADA’s prohibitions on disability-related inquiries.

As such, if the employer requires an employee to obtain the vaccination from the employer (or its third-party contractor), the employer must be able to show that the disability-related screening questions are “job-related and consistent with business necessity.” To meet this standard, an employer would need to 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 themselves or others.

Notably, employers are not required to meet the “job-related and consistent with business necessity standard” if: (1) the employer offers the vaccination on a voluntary basis; or (2) the employee receives the vaccination from a third party that does not have a contract with the employer.

Can employers require an employee to provide proof that they have received a COVID-19 vaccination?

Yes, requiring an employee to provide proof of receipt of the COVID-19 vaccination is not a disability-related inquiry or prohibited by the ADA. However, requesting information regarding why the individual did not receive a vaccination may constitute a disability-related inquiry, which would require the employer to meet the “job-related and consistent with business necessity standard.”

Can employers require employees to receive the COVID-19 vaccination?

Yes, employers are permitted to implement mandatory vaccination policies under federal law. However, employers must comply with obligations to grant reasonable accommodations for disabilities and religion under the ADA and Title VII. Employers should ensure that employees responsible for enforcing the vaccination requirement are trained on how to recognize an accommodation request and refer the request for accommodation to the proper person. 

If the employer requires COVID-19 vaccinations, how should it respond to an employee who states that they cannot receive the COVID-19 vaccination because of a disability?

If the vaccination requirements act to screen out individuals with a disability, the employer must show that the employee would pose a direct threat to the workplace and engage in the interactive process to determine if a reasonable accommodation that does not create an undue hardship is available.

How does an employer show that the employee poses a direct threat to the workplace?

To meet the direct-threat standard, the employer must show that the unvaccinated employee would pose a direct threat to the workplace by creating 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.”

In order to determine if an employee creates a direct threat, the employer must conduct an individualized assessment of: (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 in the workplace to the virus.

If the employer can show that the employee poses a direct threat, can the employee be immediately removed from the workplace?

No, the employer cannot exclude the employee from the workplace – or take any other action against the employee – unless there is no reasonable accommodation (absent an undue hardship) available that would reduce the risk of the employee causing a direct threat to others.

If the employer determines that the unvaccinated employee creates a direct threat, the employer must determine whether there is a way to provide a reasonable accommodation (absent an undue hardship) that would eliminate or reduce the risk of the employee to cause a direct threat.

Employers may rely on recommendations from the Center for Disease Control and Prevention (“CDC”) and the Occupational Health and Safety Administration (“OSHA”) when determining whether an effective accommodation is available. When determining whether an accommodation amounts to an undue hardship, employers should consider the employees’ job duties and workplace, the prevalence of employees in the workplace who have already received a COVID-19 vaccination and the amount of contact the employee would have with those whose vaccination status is unknown.

If the employer requires COVID-19 vaccinations, how should it respond to an employee who states that they cannot receive the COVID-19 vaccination because of a sincerely held religious practice or belief?

If an employee provides notice that their sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation unless it would pose an “undue hardship.” Under Title VII, an undue hardship is defined as having more than a de minimis cost or burden on the employer.

What happens if the employer cannot provide a reasonable accommodation to an employee who cannot comply with the vaccine requirement?

The employer can exclude the employee from the workplace. However, this does not mean that the employer may automatically terminate the worker.

Does the COVID-19 vaccine implicate GINA?

Possibly. An employer’s administration of the COVID-19 vaccination or requirement that employees provide proof that they have received a COVID-19 vaccination does not implicate GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. However, pre-vaccination screening questions that elicit information regarding genetic information may implicate GINA.