Mandating COVID-19 Vaccinations Of Employees: EEOC Guidance On EEO Law Considerations

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued guidance about how federal equal employment opportunity laws (“EEO laws”) may apply to potential employer requirements that employees be vaccinated against COVID-19 (the “Guidance”). The Guidance was issued as a new Section K of the EEOC’s Technical Assistance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” The Guidance focuses primarily on disability discrimination issues under the Americans with Disabilities Act (the “ADA”), religious discrimination issues under Title VII of the Civil Rights Act of 1964 (“Title VII”) and genetic information discrimination issues under the Genetic Information Nondiscrimination Act (“GINA”). 

Under the Guidance, employers may generally mandate that employees be vaccinated, but any such general mandate must be subject to exceptions to address disability and religious considerations and it needs to be administered in a manner that does not interfere with rights under GINA.

Disability Discrimination Issues

 Pre-Vaccination Screening Inquiries

The ADA limits employers’ rights to conduct medical examinations and to make medical inquiries that are likely to elicit information about a disability. The Guidance states that a vaccination is not a medical examination. However, it observes that screening questions that would be required in connection with administering vaccines are medical inquiries that are likely to elicit information about a disability. If an employer administers the vaccine (either directly or through a contractor) and makes such medical inquiries, it needs to show that the inquiries meet the ADA standard of being “job-related and consistent with business necessity,” which would require the employer to have a reasonable belief, based on objective evidence, that an unvaccinated employee would pose a “direct threat” to the employee or others.

Voluntary Vaccination Programs

The Guidance identifies two alternatives for employers to avoid the need to justify such inquiries. One is to make a vaccination program voluntary rather than mandatory. While having a voluntary, rather than mandatory, vaccination program would avoid some of the other issues addressed below, it may not satisfy an employer’s interest in promoting workplace health by maximizing the extent of employee vaccinations.

If an employer maintains a voluntary program in accordance with ADA standards for such programs, the employer cannot be penalized for asking pre-vaccination screening questions. If an employee chooses to answer pre-screening questions, the information obtained must be treated as a confidential medical record under the ADA. If the employee chooses not to answer the pre-vaccination screening questions, the employer may decline to provide the employee with the vaccine. The Guidance makes clear that the employer may not retaliate against the employee for refusing to answer the pre-vaccination screening questions.

Vaccinations by Third Parties

The second way to avoid the legally complex direct threat analysis that applies to pre-vaccination screening in an employer-administered vaccination program is to have employees vaccinated by a third party provider of vaccination services, such as a pharmacy or other health care provider, that does not have a “contract” with the employer. The rationale is that in such a case, a third party, rather than the employer, would be making the medical inquiries and obtaining the medical information.

The Guidance does not elaborate on what would be a “contract” with the employer. The Guidance does state that a contractor that makes inquiries on an employer’s behalf triggers the same concerns that would exist if the employer were to make the inquiries. Although this is not addressed in the Guidance, an employer may be able to avoid the concern arising from pre-vaccination screening questions while arranging with a third party provider of vaccination services to administer the vaccination process if it makes clear that the third party will not ask questions on the employer’s behalf, such as by having the third party provider agree not to provide any health information to the employer. 

Verifying a Vaccination

The Guidance declares that the restrictions on medical inquiries do not affect an employer’s right to require employees to provide proof of having been vaccinated. However, it warns that if an employee does not provide such proof and the employer asks why the employee did not do so, that could elicit information about a disability, which would make the inquiry subject to the “job-related and consistent with business necessity” condition for such inquiries. 

This restriction should not prevent employers from addressing an employee’s failure to be vaccinated. Under other longstanding EEOC guidance, with limited exceptions, it is generally the responsibility of an employee with a disability to request a reasonable accommodation. An employer should therefore be able to take action against an employee who fails to be vaccinated and does not request a reasonable accommodation. When informing employees about a vaccination requirement, an employer could also inform employees that they may confidentially seek an exception from the vaccination requirement as a reasonable accommodation based on disability-related or religious considerations. 

In addition, the Guidance advises employers to warn employees not to provide medical information in connection with their proof of having been vaccinated, so as to help ensure that employees do not disclose medical information in connection with providing verification of their vaccination.

Responding to Disability-Related Objections to Vaccination

If an employee claims a disability-related reason for not being vaccinated, his or her employer could not bar the employee from the workplace for refusing to be vaccinated unless the employee poses a “direct threat” to the employee or others. As with any reasonable accommodation request, the employer could generally first require an employee to provide documentation to support a statement that the employee is disabled and needs accommodations, unless the disability or the need for accommodation is obvious. 

Assuming that the employee establishes the existence of a disability and the need for an accommodation of not being vaccinated, the employer could proceed to assess whether to consider barring the employee from the workplace based on a “direct threat.” Applying the direct threat standard requires an individualized assessment based on the duration of the risk, the nature and severity of the harm, the likelihood of harm and the imminence of the harm. 

If an unvaccinated employee poses a direct threat of harm to others in the workplace by potentially exposing them to COVID-19, that is not the end of the inquiry. Reasonable accommodations need to be considered through the required “interactive process” that applies to considering any reasonable accommodation. Depending on the circumstances, reasonable accommodations may include continuing a masking requirement for an individual even if such a requirement longer applies to others, establishing special distancing requirements or permitting telework, even if others have returned to the office. The Guidance states that a person who cannot be vaccinated due to a disability cannot be excluded from the workplace unless “there is no way to provide reasonable accommodations that would eliminate or reduce this risk so that unvaccinated person does not pose a direct threat.” As in other disability contexts, an employer is not obligated to provide a reasonable accommodation if doing so would be an “undue hardship.” However, the undue hardship standard for ADA purposes is a rigorous one.

Religious Discrimination Issues

Under Title VII, an employee may seek an exemption from a vaccination requirement due to religious considerations. The employee’s objection must be based on a sincerely held religious belief, practice or observance. While the Title VII concept of a “religion” is broad, it is not so unlimited as to include all personal convictions. If an employee raises an objection to vaccination based on a claim of a religious belief and the employer has an objective basis for questioning the religious nature of the belief, the employer may request additional supporting information. 

If the employer determines that the employee’s refusal to be vaccinated is due to a sincerely held religious belief, that does not necessarily mean that the employee is entitled to continue working at the workplace without being vaccinated. To be legally protected, the accommodation may not impose an “undue hardship” on the employer. For Title VII purposes, unlike under the ADA, an undue hardship exists if an accommodation would impose more than a de minimis cost or burden on the employer. Whether an exemption from a vaccination requirement would impose more than a de minimis cost or burden requires an inquiry based on the individual circumstances. Even if an employer were properly to conclude that an exemption from the vaccination requirement would impose more than a de minimis cost or burden, the employer would then need to consider whether alternative accommodations, such as teleworking, would be a means of accommodating the employee without imposing more than a de minimis cost or burden.

Genetic Information Discrimination Issues

Under GINA, there are restrictions on employers’ inquiries that could elicit genetic information.  Such inquiries could potentially be made as part of pre-screening for a vaccination. However, as with medical inquiries, an employer can avoid such restrictions by not administering the pre-screening or vaccination process and not receiving such information.

The Guidance further notes that there are restrictions under GINA on an employer’s receipt of information from an employee’s health care provider. To protect employers from a claim of a violation of GINA, the Guidance advises employers that require employees to obtain vaccinations through their health care providers to direct those employees not to provide genetic information with their proof of compliance with a vaccination requirement.

Conclusion

Many employers are grappling with the question of whether to require employees to be vaccinated when COVID-19 vaccines are available to their employees. Some are inclined to offer voluntary programs that encourage, rather than mandate, vaccinations. Others are inclined to require vaccinations to promote the health and safety of their workers. Any employer that adopts a vaccination program should do so carefully and with the advice of employment counsel. Those that decide to mandate vaccinations need to be extra vigilant and take into account potential discrimination issues, particularly concerning disability and religious considerations, as outlined in the Guidance, in developing their approach and considering exceptions.