Just in time for the new year, the Equal Employment Opportunity Commission (EEOC) has issued long-awaited guidance for employers navigating the legal waters surrounding the recently approved COVID-19 vaccinations. The guidance answers several common employer questions related to mandating vaccination, obtaining proof of vaccination, and dealing with employees who may object to vaccination.

Can we require employees receive a COVID-19 vaccination?

Yes, at least under federal law. The EEOC guidance says employers can require employees to get vaccinated, even during the FDA's Emergency Use Authorization period. But the details and your approach matter. 

Wait, you said "at least under federal law." Does that mean state law may be different?

Possibly. In recent weeks, lawmakers in several states have proposed legislation that would prohibit or limit the ability of employers to mandate vaccinations. Whether these efforts go anywhere is to be determined, but employers operating in multiple states should keep an eye on the issue and consult with counsel before deciding whether to mandate vaccinations.

Got it. So what does the EEOC guidance say?

The EEOC guidance clarifies that the vaccination itself is not a medical examination under the Americans with Disabilities Act (ADA) because the administration of the vaccine does not itself seek medical information about an employee's impairments or current health status. 

There are several ways employers can require their employees to become vaccinated. First, employers can require employees to get vaccinated off-site by third parties, such as doctors or pharmacies. Second, employers can bring such third parties on site to administer the vaccine to employees. Third, employers can have one of their own appropriately licensed employees administer the vaccine. 

If an employer requires employees to get the vaccine from a third party, whether on-site or off-site, then that third party will ask the employees pre-screening questions and have them sign a written consent. We anticipate that most employers will choose to have third parties administer the vaccine, because then the employers will not be privy to health information elicited from their employees during this process. 

If an employer chooses to have an appropriately licensed employee administer the vaccine, then the employer must have employees answer pre-screening questions about their health and history. Those questions may implicate the ADA's stringent protections regarding an employer's health-related inquiries, because the questions may elicit information about their employees' medical conditions. 

According to the EEOC, employers that administer the vaccinations themselves, or that contract with a vendor to do so, must keep the ADA's requirements regarding disability-related questions in mind when asking pre-screening questions. Specifically, the employer would need to show that the screening questions are "job-related and consistent with business necessity." As a reminder, to meet that standard, employers must have a reasonable belief, based on objective evidence, that employees who do not answer the questions (and, therefore, do not receive the vaccine) will pose a direct threat to their own safety or the health and safety of others. Health care providers and other first responders mandating vaccines for employees should be able to meet this test. Other employers mandating the vaccine may want to document their reasonable belief and objective evidence that employees who refuse to answer the questions (and, therefore, do not get the vaccine) pose a direct threat to the health and safety of themselves and others.

There are two situations, however, in which employers or their vendors can ask such screening questions without running afoul of the "job-related and consistent with business necessity" requirement. 

First, if an employer offers the vaccine to employees on a voluntary basis (either directly or through a vendor), then the employee's decision to answer the questions also must be voluntary. The employee must have the right to decline to answer the questions, and if the employee chooses to do so, the employer or their vendor may decline to administer the vaccine, but may not retaliate the employee as a result. 

Second, if the employee receives a vaccination from a third party that does not have a contract with the employer (if, for example, an employee goes to a local pharmacy for the vaccine), then the ADA's restrictions on the pre-vaccination questions would not apply.

If we don't administer the vaccine, can we require employees to provide proof of their vaccinations?

Yes. Employers should, however, be careful of asking employees why they did not receive a vaccine, because those questions may elicit information about a medical condition – making them subject to the ADA's various requirements for disability-related inquiries.

What if an employee refuses to get the vaccine due to a claimed disability or sincerely held religious belief?

In these instances, employers should go through the same process and procedures that they would in handling any other employee who requests an accommodation for these reasons.

For disability-related reasons, employers should go through the ADA's interactive process, and assess whether unvaccinated individuals would pose a direct threat to themselves or others in the workplace. The EEOC guidance reminds employers that this direct-threat analysis typically incorporates four factors: 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. 

For employees declining to be vaccinated due to a sincerely held religious belief, the EEOC says employers should "ordinarily assume that an employee's request for religious accommodation is based on a sincerely held religious belief," and that requesting proof of the belief should ordinarily be reserved for situations in which the employer has "an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance." And, just as with an employee's request for a disability-related accommodation, employers are obligated to provide a reasonable accommodation for a religious belief, practice, or observance unless doing so would cause an undue hardship, which the EEOC describes as "having more than a de minimus cost or burden on the employer."

If an employee refused to get vaccinated and now cannot return to the workplace, then can I terminate the employee?

Not automatically, no. Employers should continue to explore whether a reasonable accommodation, such as continued remote work or the continued use of Personal Protective Equipment, is a viable alternative. In light of the months of remote work by many employees this year, employers should be careful about automatically concluding that remote work is an undue hardship just because things are returning to "normal" and most employees can safely return to the workplace. Of course, we recognize that many jobs make remote work impractical (such as in a restaurant or retail environment). And in such instances, other accommodations should be considered.

Even if you can fire an employee who refuses to get vaccinated, that does not mean you should. Leaving aside the legal issues for the moment, it has been a trying year for, well, everyone. Different employees may have many different reasons for not getting vaccinated. 

If a valuable employee can continue to work remotely, or the employee's job duties can be modified so they can continue to work but are not in regular direct contact with other employees or the general public, why risk losing that employee, and possibly alienating other employees, by taking harsh steps? While it already feels as if the pandemic has gone on forever, it will, one day, end, or at least we will be back to what becomes the new "normal." As with most decisions, employers should be mindful of possible long-term consequences based on short-term decisions.

And, as with many employment decisions, the devil is in the details. It is one thing to generally state the principle that a reasonable accommodation must be provided unless an undue hardship exists, but whether that undue hardship exists and the process used to make that determination, are critically important. Moreover, as with everything related to the current pandemic, what is or is not an undue hardship may evolve as more vaccines are approved, more people can obtain a vaccine, and more experience with bringing employees back to the workplace is obtained. Employers should therefore consult with experienced employment law counsel when dealing with these questions.