Russell Landyby Russell Landy, Partner, Damian & Valori, LLP | Culmo Trial Attorneys

In December, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its ongoing COVID-19 related guidance and determined that employers may implement and enforce mandatory COVID-19 vaccination policies for their employees – with some key considerations and caveats.

The EEOC guidance provides:

  • An employer may require that employees receive an available COVID-19 vaccine as a condition to entering, or returning to, the workplace.
  • Employers must consider and attempt to provide accommodations for employees who refuse to receive a vaccine for medical reasons or sincerely-held religious beliefs.
  • For employees refusing to receive the vaccine, employers should determine whether the unvaccinated employee would pose a direct threat to the health or safety of individuals in the workplace that cannot be eliminated or reduced by reasonable accommodation.
  • For employees excluded from the workplace for refusing to receive the vaccine, the employer may not automatically terminate the employee. Rather, the employer must assess whether other accommodations may be provided.
  • Employers should be careful with employee information gathered or received when requesting proof of vaccination.

Important implications employers should consider.

Asking or requiring employees to show proof of a COVID-19 vaccination is not a prohibited inquiry under the ADA because it is not likely to elicit information about an employee’s disability status.  The EEOC’s guidance, however, provides that an employer should not ask why the employee did not receive the vaccine because that could be a prohibited disability-related inquiry.  Those type of questions are only proper if they are job related and consistent with business necessity.

If an employee doesn’t want to be vaccinated, they can be excluded from the workplace, but…  

Under the ADA, employers may exclude employees from the workplace who present a direct threat to the health or safety of persons in the workplace. Accordingly, an employer may require that employees be vaccinated to reduce the threat.

When employees are unable to receive the vaccine due to medical conditions constituting a disability, before excluding that employee from the workplace, the employer must demonstrate that the unvaccinated employee presents a significant risk of substantial harm to health or safety that cannot be eliminated or reduced through reasonable accommodations.  Employers also must accommodate employees whose sincerely-held religious beliefs prevent them from receiving the COVID-19 vaccine, unless doing so would present an undue hardship to the employer.  That determination is based on four key factors:

  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.

If an employer determines that the employee cannot be reasonably accommodated, the EEOC guidance permits the employer to exclude the employee from the workplace, but the employee’s employment should not be automatically terminated.  Rather, the employee should be permitted to continue working remotely if possible or work in another location where the threat is reduced or eliminated.

Employers should also remember that it is unlawful to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation.

In addition, employers who ask employees to provide proof of vaccination should warn the employee not to provide any medical information beyond proof of vaccination as part of the documentation provided to avoid the implication of ADA considerations concerning the disclosure of medical information.

A vaccine does not constitute a “medical examination” under the Americans with Disabilities Act (“ADA”), or the Genetic Information Non-Discrimination Act, but…. 

If an employer administers or contracts with a third party to administer the vaccine to its employees, it should not be considered a medical examination for the purposes of the ADA, because administering the vaccine would not gather information about an employee’s health.  This is important because a medical examination would implicate employer obligations and limitations under the ADA.

Pre-vaccination screening questions to ensure there is no medical reason for a person not to receive the vaccine, however, may constitute a “medical examination” under the ADA because those questions could inquire into an employee’s disability status.  Accordingly, requiring employees to answer pre-vaccination screening questions, will cause the employer to have to be able to demonstrate that the questions are job-related and consistent with business necessity.

Similarly, the EEOC has also determined that administering the vaccine or requiring employees to provide proof of vaccination 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 acquired by the employer or disclosed by the employee. Pre-vaccination screening questions, however, could implicate GINA to the extent they elicit responses containing disability-related information.

This is a rapidly changing area of the law.  If you have any issues concerning this area, please contact our office or another competent lawyer to determine the most current law and regulations and address their applicability to your particular situation.