EEOC Weighs in on COVID-19 Vaccine

As the initial doses of the first approved COVID-19 vaccines are being administered across the United States, the EEOC has issued its initial guidance on vaccinations as part of its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” publication.

The EEOC’s latest FAQ-style guidance discusses a number of issues that employers need to consider assuming that they are requiring the vaccine.  Some of the key issues that the EEOC opined on include:

  • Vaccine or pre-vaccine questions as a “medical examination” under the Americans With Disabilities Act (“ADA”): The EEOC clarified that requiring a vaccine is not a “medical examination” as that term is used under the ADA, even if it is administered by the employer.  However, the pre-screening questions that would likely be asked of an employee who was about to receive the vaccine would be considered disability-related inquiries that need to be job-related and consistent with business necessity.  If the employer is either asking the questions of employees directly or contracting with a third-party to ask those questions and administer the vaccine, the employer must demonstrate that the questions are necessary to give the vaccine and that the vaccine is necessary to ensuring that the employee does not create a direct threat to the health and safety of themselves or others.  The EEOC notes that if the vaccine is being provided by the employer to employees on a voluntary basis or if the employer is requiring the vaccine but employees are getting it at a pharmacy or other third-party not under contract by the employer, the requirement of establishing that the pre-vaccination questions are job-related and consistent with business necessity does not apply.
  • Requiring proof of vaccination: The EEOC guides employers that they can request proof that employees received a COVID-19 vaccine.  The FAQs recommend that employers should counsel employees to not provide any additional medical information along with this proof.
  • Responding to disability accommodation requests: The EEOC outlines a multi-step process for how employers can think about the interplay between requiring a vaccine and accommodating a disability
    • First, the EEOC begins with the premise that the ADA allows employers to impose a 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 this standard (such as a vaccination requirement) would 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.’”
    • Second, to determine if a direct threat exists, employers should conduct a case-by-case assessment of (i) the duration of the risk, (ii) the nature and severity of the potential harm, (iii) the likelihood that the potential harm will occur, and (iv) the imminence of the potential harm.
    • Third, if an employer concludes that an employee who is unable to get a vaccine would pose a direct threat at work, then the employer must determine what, if any, reasonable accommodation can be provided to reduce that direct threat.
    • Finally, if there is no reasonable accommodation that can reduce the direct threat, the employer is permitted to exclude the individual from the workplace, but cannot automatically terminate employment. The employer must still consider what other accommodation can be provided to allow the employee to continue in their job even if they are excluded from the workplace based upon the direct threat analysis.
  • Responding to religious accommodation requests: Employers must provide an employee with an accommodation for a sincerely held religious belief, practice, or observance, including those that might be unfamiliar to the employer. The EEOC cautioned that employers should generally “assume” that the request for a religious accommodation is based on a sincerely held religious belief unless the employer has an “objective basis” for questioning the religious nature or the sincerity of the belief.  The EEOC does not provide any illustrative examples of what it would consider such an “objective basis.”  If an employer is unable to provide a religious accommodation from the vaccine requirement, the EEOC cautions that the employer cannot automatically terminate the employee even if it is lawful to exclude the unvaccinated employee from the worksite.

The EEOC notes that the EEO laws “do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.”  No doubt, there will be additional guidance from these authorities as more COVID-19 vaccines are approved and distributed. We will continue to monitor developments on these issues and will report them here. Stay tuned.