On November 25, 2020, I asked the ominous question: “Can I require my employees to get vaccinated against COVID-19?” In that article, I first addressed the pivotal, threshold issue of whether a vaccination constituted a “medical examination” or health screening under the Americans with Disabilities Act (ADA), as whether a private employer can implement a mandatory vaccination policy turns largely on this issue. However, I also expressed “it is difficult to predict precisely how current jurisprudence on mandatory vaccine rules and policies will translate to the COVID-19 workplace” given the scale and impact of the COVID-19 pandemic.

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance debunking prevailing wisdom and paving the way for employer-mandated vaccines. The EEOC dealt squarely with the issue of whether vaccines are “medical examinations” under the ADA and also addressed the intersection and applicability of various laws implicated by the availability of COVID-19 vaccinations, including the ADA, the Genetic Information Nondiscrimination Act (GINA) and Title VII of the Civil Rights Act of 1964 (and, specifically, religious accommodation thereunder).

Most notably, the EEOC posited that the administration of a COVID-19 vaccine to an employee by an employer, or by a third-party administrator on behalf of the employer, is not a “medical examination” under the ADA. The EEOC unequivocally expressed that “if a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” This position would seem to give private employer’s the green light to implement COVID-19 vaccine policies and require employees to be vaccinated as a condition to continued employment or, at the very least, as a condition to returning to the physical workplace.

Despite signaling that an employer may require COVID-19 vaccinations of its employees, the EEOC’s guidance does not give employers carte blanche to vaccinate their employees. For instance, because the administration of a COVID-19 vaccine likely would require an employee to provide certain pre-screening information – information that may be necessary to determine whether an employee can be vaccinated – the disclosure of that information can trigger the ADA’s provision prohibiting disability-related inquires, which can expose an employer to liability. Thus, if the employer administers the vaccine, it must show that such pre-screening questions are “job-related and consistent with business necessity” to comply with the ADA.

The EEOC goes on to advise that because health care providers should ask certain screening questions before administering the COVID-19 vaccine to ensure there are no medical reasons for which the employee should not receive the vaccine, employers should consider making vaccinations voluntary or, alternatively, should have a third-party administrator conduct everything with respect to the vaccine. Specifically, if an employer requires its employees to receive their vaccination from an outside provider, like a health care provider or pharmacy, which would be conducting the necessary pre-screening inquiries without any involvement of the employer, the ADA’s restrictions against disability-related inquiries would not apply. Then, the employer can require that its employees provide proof they received the vaccine without providing any other, additional medical information, as proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, accordingly, is not a disability-related inquiry. Employers should tread carefully, though, and: (1) should caution employees against providing any sensitive health or medical information in conjunction with providing proof of vaccination; and (2) should not ask employees any subsequent questions about why the employee may not have received, or could not receive, a vaccination, as those questions may elicit information about a disability and would be subject to the ADA standard that such inquiries be “job-related and consistent with business necessity”; in other words, the employer has a reasonable belief the employee’s refusal to provide medical information concerning the employee’s inability to receive the vaccine poses a significant risk of substantial harm to the health or safety of the individual or others.

As I discussed in my previous article, even if an employer decides to mandate COVID-19 vaccinations of its employees, the employer must be prepared to reasonably accommodate employees who either cannot, or will not, be vaccinated for medical or sincerely held religious reasons. In its recent guidance, the EEOC discussed how an employer should evaluate whether to accommodate an employee who cannot receive a COVID-19 vaccination due to a medical condition or disability. In relevant part, the EEOC’s guidance provides:

Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: 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. 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 individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely.

Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.

Ultimately, if an employee is unable to receive a COVID-19 vaccination because of a medical reason or sincerely held religious belief, and their inability to be vaccinated cannot be reasonably accommodated, then it would be lawful for the employer to exclude the employee from the workplace. Employers should observe that this does not automatically mean that employers can ban employees from coming to work or terminate an employee’s employment; indeed, whether the employee could be subject to termination would be case- and fact-specific depending on the circumstances of the employment and the employee’s essential job functions.

In summary, just because the EEOC has indicated private employers may require vaccinations does not necessarily mean employers should require them, and employers should proceed with caution when deciding to implement vaccine mandates. To begin with, employees may choose to be vaccinated regardless of employer mandate. Also, it remains to be seen whether the government will mandate vaccinations. Also, as I previously stated, employers can make employee vaccination voluntary or encourage vaccination through wellness programs. But, for those employers who choose to require vaccinations, they must: (i) exercise due care in administering it; (ii) refrain from asking any unnecessary screening questions; (iii) keep confidential any medical information received from their employees; and (iv) be prepared to engage in an interactive process with any employees who request accommodation or seek exemption from being vaccinated for health-related or religious reasons. Given the foregoing, employers should think twice before requiring employee vaccinations, and certainly should consult with legal counsel and make an informed decision as to whether a mandatory vaccination policy is appropriate for their business.