On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) published guidance to help employers navigate the decision of whether to require employees to receive the COVID-19 vaccination. The legal landscape remains muddy but the EEOC’s latest move does provide employers with options. The legality of the decision whether to require vaccination involves several federal workplace laws.
Americans with Disabilities Act (ADA) and Genetic Information Nondiscrimination Act (GINA)
Generally speaking, an employer may require their employees to receive the COVID-19 vaccine. But, to avoid getting entangled in the ADA’s web, the EEOC cautions employers about the way they ensure compliance. To stay out of trouble, the employer should simply ask for proof of vaccination, and limit questions about their employees’ vaccination status to whether or not they have received the COVID-19 vaccination. Medical providers who are furnishing proof should be instructed not to provide any medical information regarding the employee’s disability or medical condition.
Employers should be careful about asking their employees deeper questions, such as why an employee did or did not receive vaccination. Those types of questions are likely to elicit answers that contain information about an employee’s disability or medical condition, and thus implicate the ADA. However, deeper questions can be asked by an employer if they are job related and consistent with business necessity. Essentially, to be able to ask those questions, it boils down to showing that an employee’s failure to answer those deeper questions will pose a direct threat to the health and safety of the employee or others. Interestingly, the EEOC explained that the “job-related” standard is not implicated where vaccination is recommended or voluntary, especially in cases where the employee has received the vaccine from their own doctor or pharmacy.
Similarly, to avoid implicating Title II of the GINA, employers should not administer vaccinations or contract with someone to do so. The safest option is for employees to seek vaccinations from their own doctors or pharmacies because pre-vaccination screenings often ask medical questions concerning family medical or genetic histories, which implicate the ADA and GINA.
Often, an employer will want to exclude from the worksite an employee who has not been vaccinated. But the EEOC urges employers to use caution before doing so. Asking an employee to stay home is permitted where they pose a direct threat due to a significant risk of harm to the health or safety of themselves or others, which cannot be eliminated or reduced through reasonable accommodations. Whether a direct threat exists is informed by considering the duration of the risk, the imminence, nature and severity of potential harm and its likelihood of occurring.
A direct threat is likely to exist where an employee will expose others to the virus at work. But even if a direct threat does exist, not every tool in the employer’s toolbox is automatically unlocked. Before the employer can take any action, including termination or exclusion from the workplace, there must be no way to provide a reasonable accommodation that could reduce or eliminate the risk that the unvaccinated employee poses. Employers should try to identify and implement reasonable accommodations for the unvaccinated employee. Reasonable accommodations are exactly what they sound like: accommodations that are not unduly burdensome for an employer to provide. The EEOC also reminds employers not to broadcast to the workplace which employees asked for an accommodation. One situation where a reasonable accommodation might be sought is where an employee indicates that their medical condition/disability prevents vaccination. Disclosing or retaliating against an employee who seeks an accommodation will almost certainly implicate the ADA.
Title VII of the Civil Rights Act
Some employees may object to vaccination on religious grounds. The EEOC made it clear that employers are allowed to request documentation from the employee that shows that their religious beliefs truly prevents vaccination. If an employee has sincerely held religious beliefs that prevent receiving the COVID-19 vaccination, an employer must provide reasonable accommodations. An employer does not have to provide accommodations for purposes of Title VII of the Civil Rights Act where doing so would result in more than an insignificant cost or burden to the employer. If a reasonable accommodation can’t be made, only then may an employer exclude an employee from the worksite.
The Bottom Line. The EEOC guidance states that where an employee is not vaccinated, the employer must still engage in the interactive process to determine whether other options exist to permit that employee to remain employed. This guidance does not suggest that an employer can simply terminate an employee who refuses to be vaccinated. As the COVID-19 vaccine becomes more widely available, employers may consider whether to encourage or recommend that employees become vaccinated rather than impose mandatory policies. Since this issue remains so unclear, we recommend waiting for more up-to-date information from the EEOC and other federal agencies when the vaccine becomes more widely available in late Spring 2021.