The EEOC has updated its guidance regarding mandatory vaccination in the workplace and has outlined the permissible scope of a mandatory vaccination program.  While the guidance has neither the force nor application of a statute or regulation, it provides a compelling structure for a legally compliant mandatory workplace vaccination program.

We have previously suggested that a mandatory vaccination program must be premised on established rules governing workplace medical testing and the guidance the EEOC issued in 2009 concerning vaccination during the H1N1 pandemic.  We have also cautioned against rules applicable to Immuno-Haves and Have-Nots, which could spur bias and consumer claims.  The guidance EEOC issued does not alter our views, but it provides firmer guideposts for mandatory vaccination programs in light of the pandemic, and more certainty concerning medical questions and the concept of “direct threat” that might justify the application of a mandatory vaccination program and permissible exemptions to that program.

A Vaccine is not a “Medical Examination”

EEOC confirmed in the guidance that vaccination itself is not a medical examination if it is required to protect the employee from contracting COVID-19. While the vaccine itself is not a medical exam, however, screening questions given prior to vaccination may implicate ADA’s rules prohibiting disability-related questions and the limitations on information those questions elicit. The EEOC suggests two ways to avoid this issue: the first is to offer employees the opportunity to take the vaccine on a purely voluntary basis; the second is to refer the employee to a third party that is unaffiliated with the employer, such as a pharmacy or other health care provider, to administer the vaccine, which might reduce the opportunity for medical information to be directly or indirectly conveyed to the employer.

The guidance also reminds employers that any medical information employers collect about their workers must be kept strictly confidential. The guidance makes clear that simply asking an employee to show proof of vaccination is not in and of itself a prohibited medical inquiry. However, the guidance cautions employers not to go behind the request for immunization proof by making inquiries concerning why an employee has not yet been vaccinated, as such requests could elicit the communication of medical information in response.

The ADA “Direct Threat” Standard Applies to Mandatory COVID-19 Vaccination

Employers are permitted, pursuant to the ADA, to exclude workers from the workplace if an individual poses “a direct threat to the health or safety of individuals in the workplace.”  The “direct threat” standard, however, cannot be used as a screen to exclude an individual with a disability from employment.  To meet this standard, 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 reasonable accommodation.”  

The assessment of a “direct threat” 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.  Even after applying this standard – if the employer concludes that an unvaccinated individual poses an immediate threat of harm to the workplace – the analysis does not end.  Rather, the employer must then engage in the interactive process with the employee to determine if there is a reasonable accommodation to eliminate or reduce the risk of the unvaccinated employee in the workplace.  Naturally those accommodations include determining whether the employee may perform the position remotely or with other restrictions that would reduce the employee’s exposure to other employees.  The EEOC notes in the guidance that this the same step employers must take when employees report a current COVID-19 diagnosis or symptoms.

Some of the other considerations EEOC notes in the guidance in light of the “direct threat” standard include determining the prevalence in the workplace of vaccinated employees and the contact unvaccinated employees have with others.  The guidance also notes the relevance of OSHA’s COVID-19 guidance in determining whether certain accommodations for vaccine refusal would not pose an undue hardship.

The “Undue Hardship” Standard Applies to Religious Objections

Similar to the rules governing disability-based objections, employers are obligated to reasonably accommodate workers who object to vaccination based upon sincerely held religious beliefs, practices, or observances.  Unless it would pose an undue hardship under Title VII of the Civil Rights Act – which means demonstrating more than a de minimis cost or burden on the employer, employers are obligated to accommodate religious objections.  The guidance suggests that employers should assume that an employee’s request for religious accommodation is based on a sincerely held religious belief unless the employer has an “objective basis” to question the belief. In the latter case, employers would be permitted to request additional supporting information to support the claimed exemption.

Excluding Unvaccinated Workers from the Workplace

The guidance makes clear that if an employee cannot get vaccinated for COVID-19 because of a disability or because of a sincerely held religious belief, and there is no reasonable accommodation possible, then it would be lawful for the employer to “exclude” the employee from the workplace.  Exclusion does not, of course, equate to termination.  In other words, employers should consider whether other accommodations, such as remote working or other procedures that might be appropriate means to address an employee’s refusal to take a vaccine based upon a sincerely held religious belief.

Summary and Conclusion

The EEOC’s guidance confirms our prior advice regarding the cautious approach employers should take with respect to mandatory COVID-19 vaccination programs. Some take-ways from the EEOC guidance include:

• The importance of qualified and trained personnel to administer and manage accommodation requests;
• The need for compliant recordkeeping with respect to medical information that might be obtained in connection with such a program;
• The importance of individualized assessment for employees who refuse to take a vaccination, and the flexibility to accommodate employees based upon their positions, job duties, and functions in order to balance the “direct threat” and “undue hardship” standards.

It is also vitally important, given that the recently authorized vaccines have not yet been proven to reduce the transmission of the disease, that employers remain vigilant to ensure that those employees who do return to the physical workplace in the near future and before the pandemic’s end rigorously practice the same measures currently employed to keep employees safe such as wearing face coverings, social distancing, employing appropriate sanitizing measures, and avoiding group meetings in enclosed places.