By: Oyvind Wistrom

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) released updated guidance on the responsibilities and rights of employers and employees related to the COVID-19 vaccine, including mandatory employer vaccination programs.

The publication entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” is available here.  The new EEOC guidance provides information to employers and employees about how mandatory COVID-19 vaccinations interact with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).

The EEOC guidance confirms that employers are allowed to implement and enforce a mandatory COVID-19 vaccination policy for employees, with certain exceptions and caveats.  Some of the key takeaways from the EEOC include the following:

• Employers are allowed to require employees to receive an FDA approved COVID-19 vaccine (once it becomes available) as a condition of employment or continued employment.
• Employers must attempt to accommodate employees who, due to a medical disability under the ADA or sincerely-held religious beliefs under Title VII, decline or refuse to receive the vaccine.
• If an employer determines, based on objective evidence, that the presence of an unvaccinated employee (i.e., employee who declines or refuses to be vaccinated because of a disability or sincerely-held religious reasons), presents a direct threat to the health and safety of other persons in the workplace that cannot be reduced or eliminated through a reasonable accommodation, the employer can exclude the employee from the workplace.
• When an employer seeks to exclude an unvaccinated employee from the workplace due to a direct threat presented by his or her presence in the workplace, the employer may not automatically terminate the employee. Rather, the employer must attempt to accommodate the employee if he or she cannot receive the vaccine due to a disability or a sincerely held religious belief. Employers must assess four factors in making this determination: 1) the duration of the risk presented by the unvaccinated employee; 2) the nature and severity of the potential harm presented by the unvaccinated employee’s presence in the workplace; 3) the likelihood that harm will occur; and 4) how imminent that harm is to others in the workplace.
• In determining whether a reasonable accommodation exists under the ADA, the employer should consider the feasibility of possible reasonable accommodations such as working remotely, transferring the employee to another worksite where he or she can work independently, or possibly placing the employee on a leave of absence. In so doing, the employer should consider the employee’s leave rights under the FFCRA (set to expire on December 31, 2020), both state and federal FMLA, as well as under general employment policies.
• The administration of a COVID-19 vaccine by an employer (or by a third-party with which the employer has contracted to provide vaccinations) is not a “medical examination” under the ADA because the employer is not seeking information about the employee’s current health status. Requiring a vaccination also does not implicate the Genetic Information Non-Discrimination Act (GINA) because an employee’s genetic information is not being used to make employment decisions and no genetic information is being sought.
• Although the administration of the vaccine is not a “medical examination” under the ADA, the guidance notes that if a health care provider asks certain pre-vaccination screening questions to ensure there is no medical reason for a person not to receive the vaccine, these questions may constitute a “medical examination” under the ADA because they may solicit information about an employee’s disability. Therefore, any pre-vaccination screening questions that are disability-related must be job-related and consistent with business necessity, and responses should be maintained as confidential.
• Employers are also permitted to require employees to provide proof that they received a COVID-19 vaccine. Such an inquiry is not a medical examination under the ADA because it is not likely to elicit information about an employee’s disability status.  However, an employer should be careful to ensure that employees do not disclose any medical information beyond proof of the vaccination and they should avoid asking why the employee did not receive the vaccination.

With the first round of COVID-19 vaccines finally becoming available, and with several other possible vaccines on the horizon, employers need to carefully consider whether the implementation of a mandatory vaccination program is the right business decision, or whether the spread of the virus can be ameliorated through other methods or precautions.  The nature of the business, and the amount of interaction that is required between employees, customers, clients, and vendors should help guide the decision-making process of whether a mandatory vaccination program is necessary or appropriate.

If you have any questions about these guidelines or any other matter, please contact  Oyvind Wistrom or your Lindner & Marsack attorney at (414) 273-3910 to seek counsel.