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On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance for employers who are grappling with whether to make COVID-19 vaccinations mandatory for their workforce.

Up until now, employers could only guess what they could legally do—based on decade-old guidance previously issued by the EEOC regarding H1N1 vaccinations.

This latest COVID-19 specific guidance is a welcomed development for employers, although there will undoubtedly be more questions raised depending on a given employer’s unique situation.

As such, it is always advisable to consult with experienced employment counsel when navigating these issues.

According to the EEOC, the COVID-19 vaccination raises questions concerning the applicability of various employment laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act of 2008 (GINA), and Title VII (including the Pregnancy Discrimination Act).

Below are the main highlights employers will want to know:

  • Employers can require their employees to get vaccinated, subject to certain limitations discussed below.
  • If the employer requires that employees get vaccinated, the ADA may be triggered depending on whether the vaccine is administered by a third party, as opposed to a vaccinator that the Employer contracted with to administer the vaccine to its workforce. In the case of the former, Employers can require proof of vaccination by the independent third party.
  • Employers should tread lightly when asking pre-screening questions of employees, as doing so could elicit information regarding a disability, thereby triggering the ADA. Similarly, Employers should avoid asking questions that may reveal genetic information—such as questions regarding the immune systems of family members—because doing so could violate GINA.
  • If the Employer makes vaccination purely voluntary, then the ADA’s rules regarding disability-related inquiries should not apply. And, if the employee refuses to voluntarily answer any pre-screening questions as part of a voluntary vaccination program, the employer can decline to administer the vaccine.
  • Of course, any information acquired during any employer vaccination program must be kept confidential in accordance with the ADA.
  • If an employee voluntarily discloses that he or she has a disability that prevents them from getting vaccinated, the ADA’s interactive process is triggered, and employers will need to consider whether an unvaccinated employee poses a “direct threat” to others in the workplace. Even if there is a direct threat, Employers must still consider whether reasonable accommodations are available that would eliminate or reduce the risk, e.g., allowing the employee to work remotely.
  • If an employee refuses to get vaccinated based on a sincerely held religious belief, employers will need to accommodate the employee’s religious belief, unless there is undue hardship. Employers should err on the side of caution when assessing sincerely held religious beliefs, unless there is objective evidence that debunks the sincerity of the employee’s claimed religious belief. 
  • 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. This does not mean the employer may automatically terminate the worker. Rather, the EEOC cautions employers to consider whether other EEO laws may be implicated at federal, state, and local levels. 
  • Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate 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. However, as previously mentioned, employers should not ask pre-screening questions that amount to a request for genetic information in violation of GINA.

Read the full text of the EEOC’s latest guidance here in Section K.

We will continue to monitor this and other developments in the ever-changing COVID-19 landscape. In the meantime, stay safe and informed.