As the COVID-19 vaccination is being distributed across the nation, many businesses are asking whether they can or should require their workforces to get the vaccine. In response to such questions, the Equal Employment Opportunity Commission (EEOC) recently issued guidance on vaccination-related issues in the workplace. Such issues implicate the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”), among other laws. Employers who are considering implementing vaccination programs should adhere to the EEOC guidance. A few of the primary points the EEOC touched on include:
- Employers can require their employees to get the COVID-19 vaccination as a qualification standard for employment so that employees do not “pose a direct threat to the health or safety of individuals in the workplace.”
- A direct threat includes a determination that an unvaccinated individual will expose others to the virus at the workplace. To determine whether a “direct threat” exists, employers should conduct an individualized assessment of the following four factors: (i) the duration of the risk; (ii) the nature and severity of the potential harm; (iii) the likelihood that the potential harm will occur; and (iv) the imminence of the potential harm.
- If an employee who cannot be vaccinated because of a disability poses a direct threat at the workplace, he/she can only be excluded from the workplace if there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk the unvaccinated employee poses. Employers should explore accommodations such as paid or unpaid leave and work-from-home arrangements for unvaccinated employees who must be excluded from the workplace.
- Asking employees if they have been vaccinated and to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry under the ADA. In comparison, asking employees why they have not been vaccinated may implicate the ADA because answers to such questions might disclose disability-related information.
- A vaccination does not qualify as a “medical examination” for purposes of the ADA.
- Pre-vaccination screening questions, when asked by an employer or a contractor hired by the employer, implicate the ADA’s provision on disability-related inquiries, which are questions likely to elicit information about a disability. Therefore, if an employer administers the vaccination or hires a contractor to administer the vaccination on its behalf, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.” These issues can be avoided by having a third-party that does not have a contract with the employer, such as a pharmacy or other health care provider, administer the vaccine.
- Employers must keep medical information obtained in the course of a vaccination program confidential.
- If an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the COVID-19 vaccination, the employer must provide a reasonable accommodation unless it would pose an “undue hardship” (having more than a de minimis cost or burden on the employer).
Adhering to the EEOC’s guidance on requiring and administering vaccinations in the employment setting will best position employers to defend against potential claims for disability or religious discrimination. If you need additional guidance about COVID-19-related issues, contact employment counsel before implementing vaccination programs.