EEOC and COVID-19 Vaccination Policies

On Wednesday, December 16, 2020, the U.S. Equal Employment Opportunity Commission issued much-anticipated guidance regarding the COVID-19 vaccine as it pertains to the workplace. Vaccination requirements implicate a number of federal civil rights laws, including the Americans with Disabilities Act and the religious protections of Title VII of the Civil Rights Act of 1964. In New York, similar state and local human rights laws are also implicated.

The EEOC does not directly state that mandatory vaccination policies are lawful, however, its guidance suggests that employers can generally require COVID-19 vaccinations, with certain exceptions. The EEOC’s guidance makes clear that employers that wish to adopt a mandatory vaccination policy may be obligated to provide exemptions and/or accommodations to employees with religious objections to vaccines, pregnant workers and employees with disabilities that may prevent them from being vaccinated. Employers must also be aware of the questions they ask their employees about their health and vaccinations status and how they use the information they receive.

The Americans with Disabilities Act (“ADA”) generally prohibits an employer from requiring a medical examination or asking an employee whether he/she has a disability or the nature/severity of a disability, unless such examination or inquiries are “job-related and consistent with business necessity.” The EEOC’s recent guidance makes clear that neither the administration of a vaccine nor the requirement that an employee show proof of being vaccinated are in and of themselves a “medical examination” or “disability-related inquiry” and as such do not generally implicate the ADA.

The ADA also requires employers to provide a reasonable accommodation to any employee whose disability prevents him/her from being vaccinated, unless doing so is an “undue hardship,” defined as “significant difficulty or expense.” The EEOC explains that that an employer must consider possible options for accommodation in light of the nature of its workforce and the employee’s particular position. Further, the agency advises that prevalence in the workplace of workers who have already obtained a vaccination, as well as the potential contact of an unvaccinated worker with others whose vaccination status is unknown, may also impact this analysis.

The EEOC reconfirms that the ADA allows an employer to have a “qualification standard” that includes “a requirement hat an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If an employee indicates that he/she is unable to receive a COVID-19 vaccine because of disability and the employer wishes to exclude the employee from the workplace, the employer must demonstrate that the unvaccinated employee would pose a direct threat 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.” Employers are advised to conduct an individualized analysis of four factors to determine if a direct threat exists:

1. The duration of the risk
2. The nature and severity of the potential harm
3. The likelihood that the potential harm will occur; and
4. The imminence of the potential harm.

The prevalence in the workplace of employees who have already been vaccinated and the amount of contact with others is an issue to be evaluated in conducting the test. If an employer determines an employee who cannot be vaccinated poses a direct threat at the workplace, the employer cannot exclude the employee unless there is no way to provide a reasonable accommodation that would eliminate or reduce the risk so that the unvaccinated employee does not pose a direct threat. If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the employee. An employer is still required to consider other accommodations such as remote work or a leave of absence.

An employer is similarly required to accommodate employees who have a sincere religious belief that prevents them from being vaccinated, unless doing so is an “undue hardship.” With respect to requests for religious accommodations under Title VII, the “undue hardship” standard differs from, and is less stringent than, the ADA concept, requiring only that the employer show that providing an accommodation imposes “more than a de minimis cost or burden on the employer.” Under both the ADA and Title VII, “reasonable accommodation” is intended to be an individualized, fact-based, and interactive process between the employer and the employee.

The EEOC’s COVID-19 guidance also addresses the impact of Title II of the Genetic Information Nondiscrimination Act (GINA) on COVID-19 vaccinations. Title II of GINA prohibits employers from requesting genetic information absent limited circumstances. The EEOC advised that GINA is not implicated when an employer simply administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a vaccination. However, asking pre-vaccination medical screening questions may elicit information about genetic information and thus implicate GINA. Whether or not screening questions implicate GINA will depend on what questions are asked, which may vary based on the manufacturer of the vaccine, and this, in turn, may dictate whether an employer will choose to administer the vaccine program directly, or through a third party, or simply request proof of vaccination.

Finally, the EEOC advised that any medical information obtained about an employee in connection with the vaccination process should be kept confidential.