The Equal Employment Opportunity Commission (“EEOC”) recently issued its long-awaited guidance regarding the implications of mandating COVID-19 vaccinations in the workplace under certain EEO laws. In general, the guidance confirms that employers can require that employees receive a COVID-19 vaccination as a condition of employment in certain circumstances, provides guidance on how to communicate with employees about vaccination status, and addresses responding to employee objections to being vaccinated.  Below are some of the key takeaways from the guidance.

Considerations under the ADA and Title VII:

  • Under the Americans with Disabilities Act (“ADA”), employers can require that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.
  • However, if an employer chooses to implement a vaccine requirement which screens out or tends to screen out an individual with a disability, in order to ensure compliance with the ADA 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 a reasonable accommodation.
  • If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the employee. For example, the employee may be able to work remotely as a reasonable accommodation, or there may be other accommodations the employer can put in place to isolate that employee from other workers that do not create an undue hardship for the employer.
  • Similarly, if an employee objects to receiving the vaccination because of a sincerely-held religious practice or belief, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.
  • When considering whether an exception to the vaccination requirement would cause an undue hardship, employers should consider the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of the objecting employee’s contact with others whose vaccination status could be unknown, along with other relevant factors.

Communicating about an employee’s vaccination status:

  • Pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquires, in particular if the questions are intended to confirm that there is no medical reason that would prevent the person from receiving the vaccination.  Employers that ask these questions must show that these inquiries are “job-related and consistent with business necessity” to ensure they do not violate the ADA. To meet this standard, 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 confirms, however, that if the employee receives the vaccination from a third-party that is not contracted with the employer, the ADA restriction on disability-related inquiries would not apply.
  • Simply requesting proof of receipt of a COVID-19 vaccination, however, is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.
  • Additionally, vaccines administered to employees are not considered actual medical examinations under the ADA.
  • Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation and to retaliate against an employee for requesting an accommodation.

Considerations under GINA :

  • Employers are forbidden under the Genetic Information Nondiscrimination Act (“GINA”) from using genetic information to make decisions related to the terms, conditions, and privileges of employment or acquiring or disclosing such information, except in certain narrow circumstances.
  • The EEOC guidance provides that requiring employees to get a COVID-19 vaccination does not violate GINA because, according to the CDC, the COVID-19 vaccine does not interact with our DNA.
  • However, if administration of the vaccine requires pre-screening questions that ask about genetic information, such as family members’ medical histories, those questions may violate GINA.

While this guidance provides one helpful perspective on requiring COVID-19 vaccinations in the workplace, employers will still be required to carefully consider all relevant factors, including the requirements of its positions, its work environment, and the level of risk of COVID-19 spread amongst its workforce, in deciding whether to implement a mandatory COVID-19 vaccination requirement.