EEOC Issues Guidance Affirming Employer’s Right to Require COVID-19 Vaccination

The Equal Employment Opportunity Commission (EEOC) has just issued guidance affirming an employer’s right to require employee vaccinations and guiding the evaluation process when employees raise religious- and/or disability-related objections.

The EEOC’s reasoning was precisely in line with the analysis we provided in our recent articles Health Care Employers Should Be Able to Mandate Inoculation Once FDA Approves Vaccine and Yes, Non-Health Care Employers Can Require Vaccination But May Not Need To Do So For A While.  In essence, employers can mandate that employees receive the COVID-19 vaccine, provided that two conditions are met: (1) the vaccine receives full authorizations from the FDA and (2) the vaccine is available to employees.  Of course, exceptions may need to be made for those with disabilities under the Americans with Disabilities Act (ADA) and sincerely-held religious beliefs under Title VII.

We are still digesting the EEOC’s guidance, but we wanted to provide you with some highlights from the revised guidance:

The guidance comes in the form of additional FAQ’s tacked onto EEOC’s ongoing list entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.

The key takeaways are:

COVID-19 Vaccines Await Full FDA Approval

At this time, no COVID-19 vaccine has been approved (or licensed) by the Food and Drug Administration (FDA).  Even though no COVID-19 vaccine has been approved by the FDA, on December 11, the FDA issued an “Emergency Use Authorization” (EUA) for Pfizer’s COVID-19 vaccine.  Importantly, an EUA is not the same as full FDA approval or licensure.

Thus, although not stated expressly, it seems that the EEOC would frown on a mandatory COVID-19 vaccination policy before full FDA authorization.

Administration of an approved COVID-19 vaccine to an employee is not a “medical examination” for purposes of the Americans with Disabilities Act (ADA).

The EEOC makes it clear that once vaccines are fully approved, administering a vaccine (or requiring that employees be vaccinated) is not a medical exam because it is not “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  The employer is merely requiring protection against the virus.

Even so, employers requiring vaccination must still observe the ADA’s limits on disability-related inquiries.  If a vaccine is required or administered, any pre-screening inquiries relating to the vaccine must be “job-related and consistent with business necessity.”

Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry.

Just asking whether an employee has been vaccinated, and/or asking for proof, is not likely to elicit any protected health-related information.  However, asking why an employee did not receive a vaccination could result in such information being divulged and therefore, the “job-related and consistent with business necessity” standard applies to the inquiry.  This means that employers must stay focused on the need for the vaccine and then ask legitimate questions relating to how getting the vaccine might impact the employee.

If a vaccine is required and an employee refuses because of a disability, the employer first must determine whether the employee poses a direct threat to health or safety and if so, whether that threat can be eliminated or reduced through reasonable accommodation.

If a vaccination requirement is imposed and an employee claims a disability-based reason for refusing,  the employer must conduct an individualized analysis of whether this employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  The EEOC acknowledges that a “conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.”  As such, the employer must then engage in an interactive process to determine if the threat can be reduced through accommodation, such as telework, reassigned duties or additional protective gear.  Of course, the interactive process should also include obtaining medical verification of the employee’s claimed disability.

If accommodation is not possible, the employee may be removed from the workplace but the EEOC warns that termination does not necessarily ensue.  Employers must heed all other rights and protections afforded to employees, such as leave policies, FMLA obligations and collective bargaining agreement provisions.

If a vaccine is required and an employee objects based on a sincerely held religious belief, or observance, the employee must seek to provide reasonable accommodation.

The EEOC reminds us, however, accommodation need not be provided if it causes an “undue hardship”, and that the courts have ruled that this standard is met anytime that there is more than a de minimis (minimal) cost or burden to the employer. As such, the obligation to accommodate a religious objection to a vaccination requirement is less substantial than the duty to do so in the case of a disability.

A vaccine requirement does not implicate the Genetic Information Nondiscrimination Act (GINA).

The EEOC is very clear in stating that administering a vaccine or requiring proof a vaccine does not implicate GINA because a vaccine does not involve the acquisition or use of genetic information to make employment decisions.  As with the ADA, however, it is necessary to ask prescreening health questions in order to administer the vaccine, any such questions asking for genetic information might be a breach of GINA.

The EEOC notes that certain of the vaccines use mRNA technology which could raise questions as to how such a vaccine alters the recipient’s genetic makeup.  Requiring such vaccines could then be seen as an unlawful use of genetic information.  The EEOC responds, however, that the CDC has clearly explained that the mRNA COVID-19 vaccines do not actually interact with a recipient’s DNA and therefore, there would be no GINA issue.

Bottom Line

This guidance arrives just in time as vaccines have just begun to roll out in Minnesota (and elsewhere). As we predicted in our previous articles, employers may require vaccinations of their employees but must await availability of an FDA-approved vaccine and, of course, be sensitive to the possible accommodations needed by certain employees.