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On December 16, 2020, the United States Equal Employment Opportunity Commission (EEOC) issued guidance for employers grappling with whether to implement mandatory COVID-19 vaccination programs and/or policies. The EEOC’s guidance addresses the intersection of federal civil rights laws and COVID-19 vaccination programs/policies and can be found here. The guidance was issued via an update to the EEOC’s Technical Assistance Questions and Answers titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

This is the first glimpse that the EEOC has given employers regarding its views on COVID-19 vaccination programs under the laws within its jurisdiction. Please keep in mind that it may be several months before a vaccine is available to most Americans, and that further guidance may be issued based upon additional information learned about the COVID-19 vaccines. However, employers may want to begin considering whether mandatory COVID-19 vaccination policies should be implemented or whether recommending that employees get vaccinated is sufficient.

Vaccination requirements implicate a host of federal civil rights laws, including the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act of 1964 (Title VII). The EEOC does not go so far as to say that mandatory vaccine programs are lawful. Rather, the EEOC answers a series of questions based on the assumption that an employer has adopted a mandatory vaccine program. The EEOC’s guidance focuses on the employer’s response to employees who tell their employer that they cannot or do not want to obtain a vaccination for certain reasons. The EEOC’s guidance also suggests that employers may be obligated to provide exemptions or accommodations to employees with religious objections or employees with disabilities who are prevented from obtaining a vaccination.

COVID-19 Vaccines and the ADA

The ADA generally restricts employers from conducting “medical examinations” of employees unless the medical examination is job-related and consistent with business necessity. The EEOC guidance makes it clear that the vaccine itself is not a “medical examination.” Additionally, simply asking for proof of receipt of a COVID-19 vaccination is not a medical examination under the ADA (but be careful with follow-up questions asking why someone was not vaccinated).

Although administering the vaccine or asking for proof of vaccination are not medical examinations under the ADA, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries because such questions are likely to elicit information about a disability. If an employer is administering the vaccine, it must show that such pre-screening questions are “job-related and consistent with business necessity.” To meet this standard, an employer would need to have 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.

Accommodating Employees Who Cannot Obtain the COVID-19 Vaccine Due To A Disability

Under the ADA, if a vaccination requirement screens out or tends to screen out an individual with a disability, the employer must show 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 reasonable accommodation.” Employers must conduct an individualized assessment of the following four factors to determine whether the unvaccinated employee would pose a direct threat: (1) duration of the risk; (2) nature and severity of the potential harm; (3) likelihood that the potential harm will occur; and (4) imminence of the potential harm. The EEOC stated that a conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the worksite. The employer, however, should evaluate whether the employee can perform his/her job duties remotely.

Religious Objections to the COVID-19 Vaccine

The EEOC made it clear that employers are obligated to reasonably accommodate a sincerely held religious belief, practice, or observance that prevents an employee from being vaccinated, unless the reasonable accommodation would pose an “undue hardship” under Title VII. Courts have defined “undue hardship” under Title VII as anything that poses more than a de minimus cost or burden on the employer. Other EEOC guidance states that religion is broadly defined and protects beliefs, practices, and observances with which the employer may be unfamiliar. The employer should ordinarily assume that a request for a religious accommodation is based on a sincerely held belief, unless the employer has an objective basis for questioning the religious nature or the sincerity of a particular belief, practice, or observance.

As with employees who cannot be vaccinated for COVID-19 because of a disability, it may be lawful to exclude employees who are prevented from getting vaccinated due to a sincerely held religious belief from the workplace if there is no reasonable accommodation possible. This does not mean that the employer can automatically terminate the employee. Rather, employers will need to evaluate the situation in light of the facts and other laws that may apply.

GINA and COVID-19 Vaccines

GINA prohibits employers from: (1) using genetic information to make employment decisions; (2) acquiring genetic information except in narrow circumstances; and (3) disclosing genetic information except in narrow circumstances. The EEOC’s guidance states that COVID-19 vaccination policies and the act of administering vaccines to employees do not generally implicate GINA. Simply requiring employees to get vaccinated does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information. However, if administration of a vaccine program requires pre-screening questions that may ask about or elicit genetic information, GINA may be implicated by such questions.

The general public will receive more information about the COVID-19 vaccines in the coming months, and the EEOC may issue additional guidance.  We recommend that employers take time to evaluate whether to implement a mandatory COVID-19 vaccination policy based on the nature and needs of the business. Prior to instituting a mandatory COVID-19 vaccination program, employers should evaluate such a requirement’s impact on the laws discussed herein, as well as other laws not addressed by the EEOC’s guidance, such as the Occupational Safety and Health Act and the National Labor Relations Act.

Please contact Jordan Rohlfing or any other member of DeWitt’s Employment Relations practice group if you have any questions or need any guidance related to COVID-19 vaccination policies or programs.