EEOC Clears Up Questions on Mandatory Vaccines

The first doses of a COVID-19 vaccine are being administered throughout the country. What does this mean for your employees? If you want to require that they get the vaccine, new federal guidance from EEOC may help navigate the myriad of EEOC-enforced statutes at play.

Employers who wish to offer COVID-19 vaccines or require proof that employees received the vaccine must navigate a panoply of employment laws, including the:

• Americans with Disabilities Act (ADA)
• Rehabilitation Act
• Genetic Information Nondiscrimination Act (GINA)
• Title VII of the 1964 Civil Rights Act
• Pregnancy Discrimination Act

The EEOC’s latest guidance answers many questions related to the vaccine and how EEOC interprets the requirements of the statutes it enforces. It clarifies its view that:

1. Although the administration of a COVID-19 vaccine does not qualify as a medical exam or inquiry, pre-vaccination medical screening questions will likely trigger the ADA’s rules on medical inquiries. The screening questions must be job-related and consistent with business necessity. EEOC says that an employer may avoid this requirement if:

• A COVID-19 vaccine is administered on a voluntary basis, which makes answering the pre-vaccination questions voluntary. If employees choose not to answer the questions, their employer may refuse to administer the vaccine but may not retaliate against, intimidate or threaten them.
• A COVID-19 vaccine is administered by a third party that does not have a contract with the employer, such as a pharmacy or other health care provider. If pre-vaccination medical screening questions, which at this time remain largely undetermined, request information about family medical history, the third party method aligns with the requirements of GINA, which prevents an employer (but not a third party) from acquiring an employee’s genetic information.

2. An employer may require proof of a COVID-19 vaccine without implicating the ADA, but should be cautious not to ask why an employee did not get a vaccine. The response might bring up information about an employee’s disability, which could raise ADA concerns.

3. If an employer requires vaccinations and an employee cannot receive one because of a religious belief or a disability, the employer must offer a reasonable accommodation unless doing so poses an undue hardship.

4. An employer can exclude an employee from the workplace if:

• The employee cannot get a COVID-19 vaccine because of a disability and the employer conducts an individualized assessment that determines the employee poses a “direct threat” to the health or safety of others in the workplace.
• The employee cannot get a COVID-19 vaccine because of a disability or a religious belief, and there is no reasonable accommodation possible.

Employers should review this guidance before deciding whether to mandate COVID-19 vaccines. They should also keep up with:

• State laws protecting employees
• Occupational Safety and Health Administration standards
• Centers for Disease Control and Prevention updates on the state of the pandemic, which could affect federal agency guidance

Please contact Reed Russell, Clerc Cooper or any other member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.