The Equal Employment Opportunity Commission (EEOC) released its long-awaited COVID-19 vaccine guidance for employers on December 16, 2020, providing answers related to workplace requirements about COVID-19 vaccines. With COVID-19 vaccinations underway in the U.S., the deployment poses complex questions for employers determining whether to mandate vaccines for all employees and how to manage such mandates. Although the EEOC acknowledges that federal employment laws do not prevent employers from following guidelines from public health authorities, the administration of vaccines to employees raises legal issues employers should consider. This article discusses the EEOC’s new guidance and the process required for employers mandating COVID-19 vaccines for their workforces.

Employer-Mandated Vaccines Pave the Way to Reopening Offices

Employers have a general duty to take reasonable efforts to maintain a safe work environment for employees that is free from recognized hazards that are causing or are likely to cause death or serious physical harm. (See 29 U.S.C. 654(a)(1).) Because COVID-19 is a contagious virus with the potential to cause serious physical harm or death, employers are eager to use vaccine mandates to restore workplaces to safety and health.

Balancing Vaccine Mandates With Federal and State Laws

Enforcement of a vaccine requirement in the workplace requires careful balancing with other federal civil rights laws, including Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964. Although the EEOC guidance does not directly state that mandatory vaccination policies are lawful, the guidance does answer a series of questions predicated on the assumption that an employer has adopted such a policy, focusing on how an employer should respond to requests from employees who cannot or do not wish to obtain a vaccination. At a minimum, the EEOC guidance implies that requiring a vaccination as a condition of returning to the workplace is not unlawful per se, provided certain requirements are satisfied. The EEOC guidance also clarifies that employers seeking to mandate vaccinations may be obligated to provide reasonable accommodations to qualified individuals with disabilities, unless doing so would cause undue hardship under the ADA. Likewise, under Title VII, if an employee has a sincerely held religious belief which prevents him or her from taking a vaccine, the employer must provide an accommodation unless doing so is an undue hardship.

Vaccination Is Not a Medical Examination

By way of background, the ADA generally prohibits an employer from requiring a medical examination or making inquiries as to whether an employee is an individual with a disability or the nature or severity of a disability, unless such examination or inquiries are both “job-related and consistent with business necessity.”

The EEOC guidance clarifies that the vaccination itself is not a “medical examination” within the meaning of the ADA. Accordingly, the administration of the COVID-19 vaccination is not a medical examination prohibited by the ADA.

Other Inquiries and Questions May Constitute a Medical Examination

Although the administration of the vaccine is not a medical examination under the ADA, the EEOC guidance states that “pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.” If pre-screening questions constituting a medical inquiry are asked of employees, the company may ask the pre-screening questions only where they are “job-related and consistent with business necessity.” The EEOC guidance clarifies this means “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 her or himself or others.” The EEOC guidance notes two exceptions to this requirement: (1) where the vaccine program is voluntary and therefore the employee’s decision to answer pre-screening questions is voluntary; and (2) when the employee receives an employer-required vaccine “from a third party that does not have a contract with the employer, such as a pharmacy or other healthcare provider.” In the latter situation, the EEOC guidance states the ADA’s “job-related and consistent with business necessity” restriction would not apply to the healthcare provider’s pre-screening questions.

Requiring Proof of Vaccination

The EEOC guidance states that asking or requiring employees to show proof of a COVID-19 vaccination is not a disability-related inquiry under the ADA. Thus, employers may request or require employees to provide proof that they received a vaccine from another provider. However, the EEOC guidance states that other questions, including asking employees why they did not receive a vaccination, may qualify as a medical inquiry under the ADA and therefore would be permitted only when such inquiry is “job-related and consistent with business necessity.”

Responding to Employees’ Disability-Related Concerns and Excluding Employees From Work

The EEOC guidance addresses how employers that mandate vaccinations should respond to employees who indicate they are unable to receive a vaccination due to a disability. The EEOC guidance states an employer may require that an individual employee “not pose a direct threat to the health or safety of individuals in the workplace,” but when such a requirement tends to screen out individuals with disabilities, “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.’” For example, an employee who will remain working from home indefinitely may not present a direct threat to the workforce if they are not vaccinated. Additionally, as time passes COVID-19 may not present the same threats to safety and the workforce. In its new guidance, the EEOC provides that employers should conduct an “individualized assessment” to see whether a direct threat exists. An individualized assessment should weigh 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.

In its earlier guidance, Pandemic Preparedness in the Workplace and the Americans with Disabilities Act, the EEOC declared COVID-19 a direct threat. Whether COVID-19 remains a direct threat will be determined by the factors listed above. This determination will rely on the continuously-evolving guidelines of the Centers for Disease Control and Prevention (CDC) and state/local public health authorities.

If an employer determines that an unvaccinated worker poses a direct threat, the EEOC warns that it cannot then exclude that employee from the workplace “unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.”

The EEOC guidance states that if an employee’s failure to be vaccinated poses a direct threat that cannot be reduced to an acceptable level, the employer can exclude that unvaccinated employee from the workplace, but warns employers that a decision to exclude does not mean an employer can automatically terminate the employment of that employee. The EEOC guidance states that employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

What if My Employee Has a Health Issue or Religious Belief and Cannot Take the COVID-19 Vaccine?

Employees may be entitled to a reasonable accommodation on the basis of a disability or religious belief and therefore not required to submit to a COVID-19 vaccine. Under both the ADA and Title VII, reasonable accommodation is intended to be an individualized, fact-based, and interactive process between the employer and the employee. A reasonable accommodation generally includes “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” (29 C.F.R. §1630.2(o).) The EEOC provides that accommodations may include working from home or taking leave, such as under the Families First Coronavirus Response Act or the FMLA. The EEOC guidance states that an employer must consider possible options for accommodation in light of the nature of its workforce and the employee’s particular position. Further, the agency advises that prevalence in the workplace of workers who have already obtained a vaccination, as well as the potential contact of an unvaccinated worker with others whose vaccination status is unknown, may also impact this analysis.

GINA Does Not Apply

Finally, the EEOC guidance states that while many COVID-19 vaccines use mRNA technology, neither administering a COVID-19 vaccine to employees nor requiring employees to provide proof of a vaccination is prohibited by the Genetic Information Nondiscrimination Act (GINA). Because the CDC has explained that mRNA vaccines “do not interact with our DNA in any way,” the EEOC guidance states that requiring employees to receive an mRNA vaccination is not prohibited or governed by GINA. Employers who will require employees to provide proof they have received a COVID-19 vaccination should warn employees not to provide genetic information.

Practical Takeaways for Employers

• Consider and assess the EEOC’s guidance and related issues before implementing a COVID-19 vaccination program to ensure appropriate procedures and safeguards are in place to comply with ADA, Title VII, and other federal and states laws.

• Develop a COVID-19 vaccine policy that clearly provides for the rights afforded under federal and state laws.

• Document direct threat analysis based on roles/responsibilities.

• Establish a process and protocol to engage employees in an interactive process if they cannot have a vaccine for health or other reasons.

• Update COVID-19 policies to account for this new guidance and your company’s COVID-19 vaccine program.

As you are aware, things are changing quickly and there is a lack of clear-cut authority or bright line rules on implementing a COVID-19 vaccination program. This article is not intended to be unequivocal, one-size-fits-all guidance, but instead represents our interpretation of where things currently and generally stand. This article does not address the potential impacts of the numerous other local, state, and federal orders that have been issued in response to the COVID-19 pandemic, including, without limitation, potential liability should an employee become ill, requirements regarding family leave, sick pay, and other issues.