Labor, Employment, Benefits & Immigration

As news of a COVID-19 vaccine increased during the late fall, employers were anxiously awaiting EEOC guidance as to whether they could require employees to get vaccinated. While it will be several more months before the vaccine will be available to the general public, employers are thinking ahead and have been looking for guidance about their ability to require vaccination. In addition, health care employers and employers in essential businesses will be among the first to have to make these decisions, as their employees will be receiving first priority under most vaccine distribution programs.

On December 16, 2020, the EEOC issued vaccine guidance by updating its document entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” available here. The EEOC question-and-answer document, which already provided employers with a great deal of helpful information about temperature checks, excluding employees from the workplace and reasonable accommodations for individuals at high risk, was updated (see Section K) with further helpful guidance for employers considering mandating the COVID-19 vaccine once it becomes available to their workforce.

The questions are framed with the assumption that an employer may, indeed, require its employees to be vaccinated as a condition of returning to or remaining in the workplace. Employers must provide a reasonable accommodation to individuals who decline to be vaccinated due to a disability or a sincerely held religious belief. An employer may determine that an unvaccinated individual poses a direct threat that cannot be reduced or eliminated by an accommodation, and based on that conclusion may be justified in excluding the employee from the workplace. However, the EEOC’s guidance warns that employer may not automatically terminate the employee at that point. Instead, the guidance offered is that employer must determine whether there are any other rights that apply under the EEO laws (such as the ADA) or other applicable laws (such as the FMLA). The employer must therefore determine whether the employee might be entitled to FMLA leave, and must also consider whether there is a reasonable accommodation that would allow the employee to perform the essential functions of the job, such as remote work. The EEOC’s guidance states that this analysis will be very similar to the analysis employers are now performing when they evaluate remote work requests from individuals seeking to stay out of the workplace due to a high risk from contracting COVID-19.

The EEOC guidance also analyzes whether particular actions by the employer will constitute a medical examination or a disability-related inquiry under the ADA.  As a reminder, employers may only perform medical examinations or make disability-related inquiries of current employee if those examinations or inquiries are job-related and consistent with business necessity. According to the EEOC:

• Asking employees to show proof of vaccination is not a “disability-related inquiry.” An employer may ask an employee questions as to why he or she did not get vaccinated only if they are job-related and consistent with business necessity because they may elicit information about a disability.
• The vaccination itself is not a “medical examination.” 
• Pre-screening questions asked before vaccination are disability-related inquiries and may be asked if the inquiry is job-related and consistent with business necessity, that is, if the employer has a reasonable belief, based on objective evidence, that an employee who does not answer the questions, and therefore does not receive the vaccine, will pose a direct threat to the safety of others.
• Pre-screening questions are not disability-related inquiries if the employer provides the vaccine on a purely voluntary basis. They also are permissible if asked by a third party, such as a pharmacy, that does not have a contract with the employer.

Employers should remember that the question of whether they can mandate the vaccine is different from the question of whether they should. Deciding whether to mandate vaccination will need to be made based on a business analysis by each employer, with its decision stated in a clearly worded policy. Employers are strongly encouraged to consult with counsel in making any decision about mandatory vaccination.

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