New EEOC Guidance on Mandatory Vaccinations in the Workplace

The Equal Employment Opportunity Commission has issued updated COVID-19 guidance on mandatory vaccinations in the workplace. As of December 16, 2020, the agency advised that employers may mandate COVID-19 vaccination in the workplace. The guidance acknowledged that such action may implicate anti-discrimination laws including the Americans with Disabilities Act of 1990, Title VII of the Civil Rights Act of 1964, and Title II of the Genetic Information Nondiscrimination Act, but underscored that such laws do not prevent employers from following public health directives from the Centers for Disease Control and Prevention and other public health agencies. The guidance contains three main takeaways.

First, a mandatory vaccination policy is not prohibited by anti-discrimination laws so long as employees may seek an exemption for a medical condition or disability that prevents the employee from safely receiving the vaccine or a sincerely held religious belief, practice, or observance that would prevent the employee from receiving the vaccine. In evaluating a request for accommodation, the EEOC advises that the employer should make an individualized determination of whether the unvaccinated employee will “expose others to the virus at the worksite” and thereby pose a direct threat to the health and safety of individuals in the workplace. In doing so, the employer should consider: (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.

Second, even where a determination is made that the unvaccinated employee constitutes a direct threat to the workplace, “the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk, so 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 worker.” In other words, the employer and employee must continue to engage in the interactive process to see if any other reasonable accommodation can be made (e.g., remote work, isolated work, and leave under employer’s existing leave policy).

And third, the guidance reiterated that vaccinations are not medical exams under the ADA; however, an employer’s pre-screening questions must be “job-related and consistent with business necessity” which requires “a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” In assessing who needs to be vaccinated, employers may ask whether employees have received a COVID-19 vaccine. But if the answer is “no,” employers should not ask why not as “[p]re-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.” Similarly, prescreening questions should not ask employees about genetic information or family members’ medical histories.