Equal Employment Opportunity Commission Issues Guidance Regarding COVID-19 Vaccinations

On December 16, 2020, the Equal Employment Opportunity Commission (the “EEOC”) updated and expanded its technical assistance publication by adding a new section about how required COVID-19 vaccinations interact with federal law, and how the vaccinations interact with the Genetic Information Nondiscrimination Act (“GINA”).

Employers may require employees to be vaccinated if the requirement complies with legal protections for those with a disability, sincerely held religious beliefs, or genetic information.

I. Disabilities

If an employee cannot be vaccinated due to a disability, the employer must determine if the unvaccinated employee imposes a direct threat to other employees in the workforce. If the employer finds that the unvaccinated employee poses such a direct threat by exposing other employees to the virus, the employer must engage in an interactive process with the unvaccinated employee to identify a reasonable accommodation that does not impose undue hardship. It is important to keep in mind that if a reasonable accommodation is not feasible, the employer cannot automatically terminate the unvaccinated employee. Instead, the employer should take into consideration protections under federal, state or local law, and also review any collective bargaining agreements that may apply. Employers should also consider other options, such as teleworking. Any decision should be carefully documented. If it is found that a direct threat exists, an individual assessment should be conducted taking into consideration 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; and the imminence of the potential harm.”

II.  Sincerely Held Religious Beliefs

If an employer is notified that an employee cannot be vaccinated due to a sincerely held religious belief, practice, or observance, the employer must provide a reasonable accommodation unless it would pose an undue hardship under Title VII of the Civil Rights Act.  If, due to a sincerely held religious belief, an employee cannot get vaccinated for COVID-19, and a reasonable accommodation is not possible, the employer may exclude the employee from the workplace, but cannot automatically terminate the employee. Employers must determine if any other rights apply under federal, state, or local law. Employers should also review any collective bargaining agreements that may apply. Any decision should be carefully documented.

III. Genetic Information

Employers that provide mandated vaccinations to employees may need to conduct pre-vaccination medical screenings. Under the Genetic Information Nondiscrimination Act, employers or doctors working for the employer are prohibited from asking questions about genetic information. Because pre-vaccination medical screenings could produce disability-related information about the employee and/or a family member, employers mandating vaccinations should consider having the employee provide proof of vaccination instead of making the vaccination available to employees through the workplace. 

The EEOC guidance makes clear that employers implementing mandatory vaccination programs must provide exemptions for employees with disabilities or underlying health conditions who should not be vaccinated and employees who have religious objections to vaccines. While mandatory vaccinations are possible, it may not be the best course for some employers. In some cases, a voluntary program might be a better option. The following are the kinds of questions employers should ask before adopting a mandatory program: 

  1. Are the employees in a high-risk workplace (g., healthcare workers)? If yes, a mandatory program might be prudent. On the other hand, if employees are not at high risk, a voluntary program may be more appropriate. 
  2. Should the employer provide the vaccine, or should employees provide proof of vaccination?
  3. How will a mandatory program impact morale? 
  4. Does the employer want to risk discrimination claims under ADA and Title VII if it implements a mandatory program?

In the coming months, as more information about the vaccines become available, employers may want to revisit their thoughts about vaccination programs. 

If you would like to discuss vaccination programs and their impact on your organization, please contact David Gabor or Katherine Brustowicz.