New EEOC Guidance Green Lights Mandatory Vaccination Programs by Employers

In our December 11, 2020 publication found here, we explored the ability of employers to mandate COVID-19 vaccinations in the workplace. In short, in the absence of federal or state laws to the contrary, employers are free to mandate vaccinations.

On December 16, 2020 the EEOC issued guidance that paved the way for employers to mandate vaccinations without fear of violating the Americans with Disabilities Act (the “ADA”), Title VII and other federal law.  The provisions of the new guidance are outlined below.

Vaccinations are not “medical examinations” under the ADA.

Because the ADA places significant restrictions on the ability of an employer to conduct or require any “medical examination,” some commentators speculated that vaccinations would constitute a “medical examination” that could run afoul of the ADA.   Putting this issue to rest, the EEOC’s guidance unequivocally states that “if a vaccine is administered to any employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status, and therefore, is not a medical examination” under the ADA.

Pre-screening vaccination questions may implicate the ADA.

For those employers who intend to administer vaccines directly to employees (or through a third party contracted by the employer to administer the vaccine), pre-screening must be conducted to determine whether the employee has  health-related conditions that weigh against vaccination.   The EEOC made it clear that the disclosure of this information to the employer could violate the ADA’s provisions restricting disability-related inquiries, and warns that if the employer administers the vaccine it must show that any pre-screening questions are “job-related and consistent with business necessity.”

The EEOC noted, however, that the employer need not meet the “job-related and consistent with business necessity” standard if the vaccine is offered to employees on a strictly voluntary basis and the employee’s decision to answer the pre-screening inquiries is also voluntary; if the employee refuses to respond the questions the employer can refuse to administer the vaccine but may not take any retaliatory actions against the employee for refusing to do so.  In addition, the “job related and consistent with business necessity” restriction is not implicated if the employee receives the mandated vaccine from a third party that does not have a contractual relationship with the employer, such as a pharmacy or other healthcare provider.

Requiring proof of vaccination is not a “disability related inquiry” under the ADA.

The EEOC also clarified that employers can require proof of vaccination without implicating the ADA’s restrictions on “disability-related inquires.”   The EEOC observed that there may be many reasons to explain why an employee has not been vaccinated (e.g., a personal aversion to vaccinations) that may or may not be disability-related, and simply requiring proof is not likely to elicit information about a disability. The EEOC cautioned, however, that follow-up inquires, such as asking why the employee did not receive the vaccination “may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’” The EEOC goes on to state that if employees are asked to provide proof of vaccination from a pharmacy or personal healthcare provider, the employer should warn the employee not to provide any medical information as part of the proof to avoid implicating the ADA.

ADA protections for employees seeking recusal because of a disability.

Mandated vaccinations may tend to screen out disabled individuals who cannot be vaccinated for medical reasons.    To survive a disability discrimination claim under the ADA, the employer must show that the excluded individual would pose a “direct threat” to the workplace due to a “significant risk of substantial harm to the health or safety of the individual or others”  that cannot be eliminated by reasonable accommodations. The guidance notes that a “direct threat” includes a determination that an unvaccinated individual would expose others to the virus. Nevertheless, if accommodations to eliminate the risk of COVID-19 exposure – such as additional personal protection equipment or permitting the employee to work remotely are possible, the unvaccinated employee may not be excluded from the workplace unless the employer can show that the accommodation would impose an “undue hardship” on the employer. The guidance details the following four factors that should be part of an individual assessment to determine whether the unvaccinated individual would in fact pose a “direct threat” to the workplace: i) the duration of the risk; ii)the nature and severity of the potential harm; iii) the likelihood the potential harm will occur; and iv) the imminence of the potential harm. The guidance cautions that the prevalence of employees in the workplace who have received the vaccine and the amount of contact the unvaccinated individual will have with others whose vaccination status could be unknown (e.g., customers) should be considered before the employer concludes that accommodation would result in “undue hardship.”

Title VII protections for religious objectors.

Employees may claim that sincerely held religious beliefs prevent the employee from receiving the vaccination.   As with the duty to provide reasonable accommodations for disabilities under the ADA, Title VII requires employers to reasonably accommodate religious  beliefs unless the employer determines that doing so would pose an “undue hardship” after engaging in the individualized assessment process discussed above.

GINA not implicated by mandates vaccination policies.

Finally, the EEOC clarified that an employer’s administration of the vaccine, pre-vaccination medial screening, or requiring employee to offer proof of vaccination do not implicate the Genetic Information Non-Discrimination Act (GINA).  As with similar concerns under the ADA, the EEOC concluded that these actions do not involve the use of genetic information to make employment decisions nor are they likely to elicit information about a disability.

Proceed with caution.

Despite the EEOC’s conclusion that mandatory vaccination programs are not per se unlawful, employers must keep in mind that they do not have carte blanche when administering these programs.    First, employers must assess whether a mandated vaccine policy is necessary or advisable given the nature of the work environment.    Recommending or encouraging employees to vaccinate is an alternative that should be considered.   Second, if vaccines are mandated employers face a minefield of  legal issues for employees invoking disabilities or religious objections to avoid vaccination. Finally, as with other  aspects of the pandemic’s impact in the workplace, employers are navigating unchartered waters and face potential liability regardless of whether they decide to mandate vaccinations. The parameters of reasonable employer actions to combat the pandemic and protect employees in the workplace have yet to be established and may only be clarified through future litigation or legislative actions.   Given the complexities of the issue, employers should consult with employment counsel to engage in a thorough legal assessment before implementing a mandatory vaccination program.

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