The Equal Employment Opportunity Commission (EEOC) has provided new guidance for employers considering requiring COVID-19 vaccinations—guidance that attorneys advising employers say needs to be studied carefully. On December 16, the EEOC added a new section to its guidance on how employer COVID-19 vaccination policies interact with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). The addition is to the “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” publication.
“The key takeaway of the EEOC guidance is that employers can implement and enforce a mandatory COVID-19 vaccination policy for employees as a condition of returning to the workplace or remaining in the workplace, with certain exceptions or caveats,” Lisa Berg, an attorney with Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. in Miami, Florida, says.
“Specifically, employers have a duty to accommodate employees who seek an exception to the policy due to a disability or sincerely held religious belief, practice, or observance, unless doing so presents an undue hardship,” Berg says.
The new section points out that if an employer requires employees to be vaccinated, the prescreening questions that are asked before a vaccination is administered may present legal risk. To comply with the ADA, employers must ensure that any information the employer collects is job-related and consistent with business necessity.
Berg says if an employee refuses to answer the questions—and therefore doesn’t receive the vaccination—the employer will need to have a reasonable belief, based on objective evidence, that the employee poses a direct threat to their own health or safety or that of others before removing the individual from the workplace.
Nita Beecher, an attorney with FortneyScott in Washington, D.C., says employers face “a very high standard” since they must show they have “a reasonable belief based on objective evidence that an employee who does not answer the questions and does not receive the vaccine will pose a direct threat to other employees.” To avoid liability, Beecher advises employers to have employees get vaccinations from their medical provider or through pharmacies.
Berg says if an employee receives an employer-required vaccination from a third party that doesn’t have a contract with the employer—such as a pharmacy or other healthcare provider—then the ADA’s “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the prevaccination screening questions.
“So, perhaps, it might make more sense to have a third party administer the test,” Berg says. “In that case, the employer only needs to require an employee to show proof of receipt of a COVID-19 vaccination, which the guidance states is not a disability-related inquiry.”
Legally Required Policy Exceptions
Antidiscrimination laws require employers to grant exceptions to mandatory vaccinations when people have medical or religious reasons for not taking them.
“There are actually two different standards for handling disability and religious accommodation requests,” Beecher says. “For disability-related requests, the employer should go through the interactive process to see if there is some reasonable accommodation that can be provided which is not an undue hardship, such as continuing to work from home.”
If no accommodation is available or the accommodation would be an undue hardship on the employer, the employer can bar the employee from the workplace if it can show the unvaccinated individual is a “direct threat,” Beecher says.
“The EEOC specifically states just because an employer can ban the employee from the workplace as a direct threat does not mean the employer can automatically terminate the employee,” Beecher says. “The direct-threat standard is a very high one, so employers should make sure that they work through the interactive process with any employees who have disability-related issues with the vaccine.”
Beecher says that for religious objections, employers just need to provide an accommodation that doesn’t create an undue hardship, which is defined as having less than a minimal cost or burden to the employer. She adds that the EEOC makes clear the employer can ban employees from the workplace but not automatically terminate them for refusing the vaccine.
“Employers should be aware that the EEOC is currently very focused on religious rights and so should make sure to document any refusal to accommodate religious objections,” Beecher says.
Berg points out the EEOC maintains that employers need to determine if any other rights apply under equal employment opportunity laws or other federal, state, and local authorities.
The new guidance from the EEOC also addresses how mandatory COVID-19 vaccination policies might implicate GINA. Beecher says employers should avoid asking questions about genetic information under any circumstances.
“If vaccines are given by the employee’s own doctor, EEOC says employers should tell employees to make sure the doctors do not provide any genetic information as part of the proof of the vaccine,” Beecher says.
Berg adds that prevaccination screening questions such as inquiries about the immune systems of family members may present a problem. “However, the guidance notes that it is unclear at this time what potential genetic conditions will be included in the screening checklists for vaccine contraindications.”
Voluntary vs. Mandatory Policy
Mark C. Dean, an attorney with Steptoe & Johnson PLLC in Charleston, West Virginia, advises employers to “tread carefully” during the early stages of the nation’s vaccination program and thoroughly consider whether they need a mandatory policy or whether a voluntary policy would be better.
Even if a policy is voluntary, Dean urges employers to engage with employees by stating the case for vaccination and offering the shots on-site or making them convenient for employees to get elsewhere. He also says to keep a written record of who accepts or refuses vaccination and who gets the shots.
Although the new guidance provides clarity on many employer questions, some companies are still unsure how they can handle employees refusing the shot, James P. Reidy, an attorney with Sheehan Phinney Bass & Green PA in Manchester, New Hampshire, says.
“We represent several hospitals, nursing homes, and assisted living facilities,” Reidy says. “Under New Hampshire law, they have been able to mandate the annual flu vaccine and require other immunizations for clinical/patient-facing positions, but they weren’t sure they could do the same for the COVID-19 vaccine. While they know now they can mandate the vaccine if it is job-related and with noted accommodation exceptions, still they are uncertain how they will handle refusals that don’t fit into the exceptions.”