By Cristina N. Hyde, J.D.

Last month the Equal Employment Opportunity Commission (EEOC) released guidance stating that employers can require employees to get the COVID-19 vaccine.  Knowing that the vaccine’s arrival would raise questions related to the applicability of various Equal Employment Opportunity (EEO) laws, the EEOC guidance states very clearly that EEO laws “do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.”

Of course, as with any mandate, there are fine lines and exceptions.  Here are the highlights:

• The administration of a COVID-19 vaccine to an employee is not a “medical examination” for the purposes of the Americans with Disabilities Act (ADA). However, if an employer requires an employee to receive the vaccination, administered by the employer, care must be taken to ensure that pre-screening vaccination questions do not run afoul of the ADA’s provision on disability-related inquiries; keeping questions “job-related and consistent with business necessity.”
• Employers can ask for proof than an employee has received the COVID-19 vaccine. However, employers should be careful about any follow-up questions such as inquiring as to why an employee did not receive the vaccine.  Such an inquiry may reveal information about a disability and be subject to the “job-related and consistent with business necessity” standard.
• Employers can exclude unvaccinated employees from the workplace. Employers are allowed to ensure that an employee not pose a direct threat to the health and safety of others in the workplace. However, if such a standard screens out an individual with a disability the employer must show that the threat cannot be eliminated or reduced by reasonable accommodation. Moreover, while the employer can physically exclude the employee from the workplace, the employer should not automatically terminate the individual.  The employee may be entitled to accommodations such as performing their position remotely so long as it does not cause “undue hardship” for the employer.  Therefore, prior to termination, an employer must determine if any other rights apply under EEO laws or other federal, state or local authorities.
• Employers must accommodate exemption requests due to a sincerely held religious practice or belief. If an employer is notified of an exemption request due to religious belief, practice or observance, the employer must provide for a reasonable accommodation unless it would pose an undue hardship under Title VII of the Civil Rights Act.
• Employers that administer the vaccine or ask employees a to show that they have been vaccinated do not trigger GINA (Genetic Information Nondiscrimination Act) because the inquiry does not elicit information about genetic information.

The complete updated EEOC guidance can be found here.

If you have any questions regarding the updated guidance or would like assistance identifying workplace accommodation requests or options, Contact Us.