EEOC Weighs In With Guidance on Mandatory Vaccine Programs

At long last, the U.S. Equal Employment Opportunity Commission has weighed in and provided some guidance on how and when an employer may require a worker to get a COVID-19 vaccination, and whether a worker who refuses to be vaccinated can be terminated.

Here's a link to the new policy document:

https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws

The EEOC goes through legal requirements under the Americans with Disabilities Act and Title VII of the Civil Rights Act and addresses how employers should address those employees for whom the vaccine may pose a problem: those with an underlying disability, and those who hold religious beliefs which would prevent the vaccination.

The EEOC clarifies what the case law has held for years concerning the flu vaccine, which is that employers must first attempt to provide such employees with a reasonable accommodation or exempt them from the vaccination requirement altogether. Where that is not possible, those employees can be blocked from coming to work but they cannot be automatically terminated. Instead, employers are cautioned to ensure compliance with all applicable civil rights laws when considering whether to terminate the employment of such an employee.

"If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace," said the EEOC. "This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities."

Employers are required to conduct a case-by-case analysis to figure out if that person poses a "direct threat" to workplace health and safety by being unvaccinated. If so, employers must then attempt to provide a reasonable accommodation, like teleworking, to mitigate the health risk. Employees can only be prevented from entering the work site if the direct threat they pose to others "cannot be reduced to an acceptable level."

For religious objectors to a vaccine, employers must similarly try to accommodate the person's beliefs as long as it doesn't pose an "undue hardship." Under Title VII, courts have held that this is defined as "having more than a de minimis cost or burden on the employer."

The EEOC's guidance states that the actual process of an employee receiving an FDA approved COVID-19 vaccine will not be considered a "medical examination" for purposes of the Americans with Disabilities Act for employers that administer it or that hire third parties to do so. The ADA places limits on employers' ability to make workers take medical tests or otherwise seek out medical information about them. There is a big caveat:

"Although the administration of a vaccination is not a medical examination, prescreening vaccination questions may implicate the ADA's provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.... If the employer administers the vaccine, it must show that such prescreening questions it asks employees are 'job-related and consistent with business necessity.'"

Another issue addressed in the guidance is whether employers can require workers to offer proof that they have been inoculated against COVID-19. This is permissible, but employers must be careful about follow-up questions where information is sought as to the reasons why a vaccine could not be received. "If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA," according to the EEOC.

As we all learn to navigate the legal risks in this new world of ours, feel free to reach out with any questions on how to mitigate risk from a mandatory or voluntary program, or any other employment-related questions.