The U.S. Equal Employment Opportunity Commission released new guidance this week clarifying that employers can generally require employees be vaccinated against COVID-19.
Released Wednesday, the EEOC guidance essentially provides that employers can require employees get vaccinated as a condition of entering the workplace, unless an employee cites a disability or sincerely held religious belief.
While the Americans with Disabilities Act limits an employer's ability to require that workers get a medical examination, the EEOC now clarifies that vaccinations are not medical exams.
The agency's guidance also notes the ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”
"However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, 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 reasonable accommodation,'” the EEOC notes.
"Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: 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.
"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."
An employer cannot exclude an employee who cannot be vaccinated due to disability from the workplace—or take any other action—"unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk."
"In such cases, the employer must offer a reasonable accommodation to the employee, such as working remotely, as long as the accommodation doesn’t cause 'undue hardship' for the employer," the EEOC said.
"If there is no accommodation possible, then an employer may prohibit the employee from entering the premises but not necessarily fire the worker. The employer must see if the employee has any other rights under federal or local laws, including the ability to take unpaid leave under the Family and Medical Leave Act."
The EEOC guidance also allows an employer to ask employees for proof of vaccination, clarifying such a request would not violate Title II of the Genetic Information Nondiscrimination Act.
"Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it 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 guidance notes.
Attorney Jeff Nowak, of the labor and employment firm Littler Mendelson P.C., writes in his employer blog that the EEOC guidance "effectively gives employers the green light to require that employees obtain the COVID-19 vaccine," subject to disability and religious belief accomodations.
"If the employer requires employees to obtain the vaccination, administered by the employer, the employer must show that any screening inquiries are job-related and consistent with business necessity," Nowak writes.
"There are two exceptions to this rule. First, if the employer chooses to make the vaccine voluntary and the employee has the choice to answer (or not) pre-screening questions, this passes ADA muster.
"Second, if the employer requires that employees receive the COVID-19 vaccine and the employee receives the vaccine from a third party with whom the employer does not have a contract (think Walgreens or CVS), the ADA is not implicated.
"Put another way, an employer can mandate the COVID vaccine so long as employees obtain the vaccine from a third-party pharmacy or medical provider with no connection to the employer."
Nowak tells employers that while the EEOC guidance is welcome news as it provides a roadmap for vaccine mandates, "practicality should rule the day."
"As I’ve shared with clients, the issue of mandatory vaccines is not as much a legal issue as it is a practical issue," he writes.
"Sure, employers now have 'legal' clearance to require vaccines, but the more important question is, 'Should we require them?'
"A couple of thoughts to keep in mind in the middle of this vaccine madness:
- Deep breaths. Your rank-and-file employees’ access to the vaccine is still several months away. So, why the rush to figure out right now whether you will mandate the vaccine? You’re far better off taking a wait-and-see approach to see how the kinks get worked out.
- Practical problems. How can you require a vaccine when many of your employees won’t have access to the vaccine till springtime? Let that sink in for a minute. Ok, I’ll move on.
- More practical problems. When the vaccine is finally readily available, it’s likely that at least 30-ish% of your workforce will decline the vaccine. What will you do then? Fire 30% of your workforce? Of course not, suggesting that employees have some leverage now and into the future.
- Incentives. Start thinking about how you can strongly (but legally) incentivize your employees to obtain the vaccine. In the weeks ahead, we will be working with our clients to establish incentive programs to maximize the chances that employees voluntarily obtain the vaccine. Be sure to discuss the legality of these incentives with your favorite employment attorney."