The Equal Employment Opportunity Commission (EEOC) has released updated guidance regarding employers’ and employees’ rights and obligations related to mandatory COVID-19 vaccination.

Mandatory Vaccinations are Permitted

On December 16, the EEOC released guidance confirming that employers may require employees to be vaccinated for COVID-19, subject to Title VII of the Civil Rights Act (Title VII) prohibiting religious discrimination and the Americans with Disabilities Act (ADA) which prohibits discrimination based on disability.

Disability Accommodation Requests

If an employee cannot get vaccinated for COVID-19 because of a disability, the EEOC directs employers to conduct an individualized assessment to determine whether the 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.”  This analysis includes the following four factors:

  • The duration of the risk.
  • The nature and severity of the potential harm.
  • The likelihood that the potential harm will occur.
  • The imminence of the potential harm.

The EEOC has stated that any conclusion of a “direct threat” would include a determination that an unvaccinated individual will expose others to the virus at the worksite.

The EEOC has further clarified that employers can ban employees who pose a direct threat from physically entering the workplace if there is no way to otherwise provide that employee with a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk of infection to others.  However, this does not mean an employer can automatically terminate the worker because other employee rights may apply under EEO or other laws. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or the employer’s policies.

The EEOC further notes the role of managers and supervisors in recognizing an accommodation request from an employee with a disability and their responsibility for knowing to whom the request should be referred for consideration. Once a request has been made, the EEOC notes that the ADA’s interactive process requirement must be followed and that this process should be flexible and seek to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).

This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact by the unvaccinated employee with others, particularly those whose vaccination status could be unknown, may impact the undue hardship consideration.

Religious Accommodation Requests

On the topic of religious accommodation requests, once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII.  The EEOC notes that “undue hardship” has been defined as having more than a de minimus cost or burden on the employer.

The EEOC further explains that the definition of religion is broad and protects beliefs, practices, and observance with which the employer may be unfamiliar, and, because of this, employers “should ordinarily assume” an employee’s request for religious accommodation is based on a sincerely held religious belief.  However, employers who have an objective basis for questioning “either the religious nature or the sincerity of a particular belief, practice, or observance” are justified in requesting additional supporting information.

Vaccination Pre-Screening

The EEOC has confirmed that an employer’s administration of a COVID-19 vaccine to an employee (or by a contracted third party) is not a “medical examination” for purposes of the ADA. The EEOC reasons that employers are not seeking information about an individual’s impairments or current health status, and thus the vaccination itself does not qualify. However, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability. Employers must show that such pre-screening questions are “job-related and consistent with business necessity.”

To meet this standard, the EEOC explains that employers should have a reasonable belief, based on objective evidence, that an employee who does not answer the questions, will pose a direct threat to the health or safety of her or himself or others if not vaccinated.

The guidance clarifies that there are two circumstances in which disability-related screening questions can be asked without satisfying this standard:

  • An employer has offered the vaccination voluntarily and the employee’s decision to answer pre-screening, disability-related questions is also voluntary. In this case, an employer can decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer the questions.
  • The employee receives an employer-required vaccination from a third party that does not have a contract with the employer (i.e., a pharmacy or other healthcare provider).

The EEOC next discusses whether pre-screening questions about genetic information (including questions regarding the immune systems of family members and family medical history) would implicate Title II of the Genetic Information Nondiscrimination Act (GINA). The answer according to the EEOC is, yes.  However, the EEOC notes that it is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.  If the checklist includes questions about genetic information, the EEOC recommends employers request proof of vaccination instead of administering the vaccination themselves because GINA does not prohibit an employee’s health provider from asking questions about genetic information. Employers should warn the employee not to provide genetic information as part of their proof of vaccination.  If this warning is provided, any genetic information provided by the employee will be deemed “inadvertent and therefore not unlawful under GINA” according to the EEOC.

Note, all employee medical information obtained in the course of a vaccination program must be maintained as a confidential ADA medical record.

Proof of Vaccination

The EEOC has confirmed that asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry.  However, to the extent an employer asks subsequent questions regarding why an employee did not receive a vaccination that would elicit information about a disability, that questioning would be subject to the “job-related and consistent with business necessity” standard discussed above. Again, employers can avoid this issue by requesting the employee provide proof that they have received a COVID-19 vaccination from a pharmacy or their healthcare provider, rather than administer the vaccination themselves. And, the EEOC again cautions employers to warn employees not to provide any medical information as part of their proof to avoid implicating the ADA.

Finally, the EEOC has also confirmed that asking or requiring proof of vaccination (including a vaccination that uses messenger RNA (mRNA)) does not implicate GINA because the request does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. The EEOC relies upon the CDC’s statement in reaching this conclusion that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” Thus, requiring employees to get the vaccine or provide proof of vaccination (whether it uses mRNA or not) does not violate GINA.

If you have any questions about the EEOC guidance related to COVID-19 vaccinations, please contact the author.