EEOC Issues Guidance on Legally Compliant COVID Vaccination Programs

January 6, 2021

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) once again updated its guidance concerning COVID-19, this time to address vaccinations.  Just as with past guidance, the new information regarding vaccinations comes in the form of questions and answers that show up in the last section of the EEOC’s COVID-19 technical assistance publication.  These are the highlights:

The EEOC has taken the position that the ADA, GINA, and Title VII do not prohibit employers from requiring their workforces to be vaccinated against COVID as long as certain conditions are met.

Employers are permitted to require employees to get the COVID vaccine and/or to ask their employees for proof of a COVID-19 vaccine without running afoul of EEO law so long as the vaccination program is job-related and consistent with business necessity.  This means that if the employer administers a vaccination program or contracts with a third party to do so, it must be job-related and consistent with business necessity (i.e. necessary because of the nature of the business and the employee’s job to exclude employees with a medical condition that would pose a direct threat to health or safety or the employee or others) in order to be lawful under the ADA.

EEOC guidance also makes clear that employers should avoid automatically firing an employee or excluding him/her from a worksite because the employee has not obtained the vaccine.  Even in the context of the coronavirus pandemic, employers must make efforts to ensure they accommodate employees who are not vaccinated for legally protected reasons, such as disabilities and/or religious belief.  There may be situations where an employee should be excused from the vaccination requirement.

So, what does all of this mean for employers who seek to lawfully require their employees to be vaccinated for COVID:

  • Requiring employees to take a vaccine and/or asking for proof of vaccination may be permissible; if the vaccine is administered by the employer or a third-party with whom it contracts, the vaccination must be job-related and consistent with business necessity.
  • Employers may choose to have independent third parties like pharmacies or health care providers administer the vaccines, and ask for proof of vaccination. But employers should warn employees in advance not to provide other medical information with the proof of vaccination, i.e., leave out information about screening answers, diagnosis, medical condition(s), prescription information, etc.
  • As always, employers must maintain the privacy and confidentiality of any medical information the employee obtains during the course of a vaccination program.
  • Vaccination requirements must be implemented in a non-discriminatory fashion, i.e. they should apply to all employees/all employees of the same job title/location/etc. verses only a select few.
  • Employers cannot automatically fire or restrict from the workplace an employee who does not get the COVID vaccine because of a disability or sincerely-held religious belief.
      • Before restricting from the job site or terminating an unvaccinated employee, the employer must do an individualized assessment to determine if the employee poses a direct threat (i.e., significant risk of substantial harm) to the health or safety of him/herself or others. Employers should consider 4 factors: 1) duration of the risk, 2) severity of the potential harm, 3) likelihood harm will occur, and 4) imminence of the harm.  In the context of COVID, finding a direct threat requires the employer to determine that the employee will expose others to COVID.
      • If the employer determines an unvaccinated employee poses a direct threat, the employer must also assess whether there exists a reasonable accommodation for the disability/religious belief to permit the employee to do his/her job without causing undue hardship (i.e., significant difficulty or expense in the context of the ADA; more than a minimal burden on operation of the business, in the context of Title VII) to the employer.
      • If there is a reasonable accommodation, then the employer cannot exclude the employee from the job site (or take any other action).
  • Employers must perform the direct threat/reasonable accommodation assessment for each employment decision. For example, just because there might not be a reasonable accommodation for an unvaccinated employee to safely work at the job site does not necessarily mean the employee can lawfully be fired.  Working remotely or taking leave under the Families First Coronavirus Response Act, the FMLA and/or the employer’s policies may be a reasonable accommodation for a person who cannot get vaccinated because of a disability or religious belief to do his/her job without exposing co-workers to the virus.
  • Employees need not refer to any law or otherwise use any specific legal term to trigger the employer’s duty to accommodate a disability or religious belief, even in the context of vaccine requirements. Managers and supervisors should be trained to recognize statements by employees that are requests for accommodations.  Employers and employees also should be flexible and cooperative to try to identify whether a reasonable accommodation exists to exempt the employee from vaccination requirement.
  • Employers cannot retaliate against employees who asks for or receives an accommodation to a vaccination requirement.