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EEOC Provides Much-Anticipated Guidance for Employers Concerning COVID-19 Vaccinations
EEOC Provides Much-Anticipated Guidance for Employers Concerning COVID-19 Vaccinations

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated its guidance concerning the COVID-19 pandemic in the employment law context, with new guidance regarding the recently-approved COVID-19 vaccines. The new section covers a host of issues related to COVID-19 vaccines, such as the rights and limitations of employers in making pre-vaccination medical screening inquiries, and the limited circumstances under which employers may mandate a COVID-19 vaccination.

 The ADA Implications of COVID-19 Vaccines

Employers are generally prohibited from requiring medical examinations and making disability-related inquiries under the Americans with Disabilities Act (ADA), unless: (1) the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has a reasonable belief an employee poses a “direct threat” to health or safety in the workplace that cannot otherwise be eliminated or reduced by a reasonable accommodation. The EEOC’s guidance concerning COVID-19 vaccinations makes clear that the vaccination itself is not considered a medical examination. However, questions about why an employee did or did not receive a COVID-19 vaccination are likely to elicit information about a disability and, therefore, should only be asked if the employer has a reasonable basis under one of the above noted factors to do so. By contrast, the EEOC makes clear that a simple request that an employee produce proof of receipt of a COVID-19 vaccination would not implicate the ADA. It is the subsequent questioning of why an individual did not receive a vaccination that can lead to legal ramifications.

Mandatory COVID-19 Vaccination Policies

The EEOC’s guidance suggests that there are a limited number of circumstances where an employer may lawfully mandate its employees to obtain a COVID-19 vaccination. The employer would have to satisfy the “direct threat” standard, i.e., that an unvaccinated 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 a reasonable accommodation.” Importantly, this justification must be based on objective, factual information, and not just subjective perceptions or irrational concerns. 

Even where the direct threat standard is satisfied, an employer cannot automatically exclude the employee from the workplace for declining to get vaccinated. This is because employees are entitled to request a reasonable accommodation that might allow for their physical attendance at the workplace -- albeit with less exposure to others -- and the employer is obligated to consider such requests. A request for a reasonable accommodation may be based on a medical disability recognized by the ADA or state law, or based on a sincerely held religious belief, practice or observance, as protected by Title VII of the Civil Rights Act. Upon receiving an accommodation request, the company must engage in an “interactive process” with the employee to determine if it can provide the employee with a reasonable accommodation (barring an undue hardship on the company). 

The EEOC’s new guidance explains that it is only when a direct threat cannot be reduced to an acceptable level that an employer may lawfully exclude the employee from physically entering the workplace if the employee declines to get vaccinated for COVID-19. Even under such circumstances, employers may still be required to accommodate the employee with teleworking arrangements wherever practical.

 Given the sensitive nature of an individual’s personal healthcare decisions, employers may be better served by implementing less intrusive measures of workplace safety, such as COVID-19 office containment policies and basic health screening inquiries related to COVID-19 symptoms. This is because even where legally permissible, a mandate may not be the “right” option for some employers who cannot meet the ADA standards discussed above without significant administrative burdens and legal risk.

For the above reasons and those detailed in our prior alerts1, a number of legal issues are at play when it comes to COVID-19-related health screening measures in the workplace and any mandate that employees be vaccinated. Given the complexities of these issues, we urge employers to consult with their employment law counsel, and to read the new EEOC Guidance (see “Section K”). 

1 See:

Going Back to Work: EEOC Guidelines for an ADA-Compliant Reopening;

COVID-19 Workplace Policies All Employers Should Consider Before Reopening

EEOC Issues Updated Guidance on Employer Antibody Testing; and

Guidance for Employers on ADA- and OSHA-Compliant COVID-19 Screenings and Protections.

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