Can Employers Require COVID-19 Vaccinations for Employees?

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance that allows for employer-mandated vaccines. According to the EEOC, employers may implement a mandatory vaccination policy because vaccines are not “medical examinations” under the Americans with Disabilities Act (ADA) – but a third-party administrator should administer the vaccine so that medical information gathered by the vaccine administrator – health screening questionnaire, etc.. – is not gathered by the employer. The EEOC says that “if a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” So, during the pandemic, employers can implement COVID-19 vaccine policies and require employees to be vaccinated as a condition to continued employment or, at the very least, as a condition to returning to the physical workplace. Mandatory vaccinations also trigger additional legal obligations.

Here are six (6) things to know about the EEOC’s Vaccine guidance.

  1. The EEOC recommends that employers should make COVID-19 vaccinations voluntary.
  2. The EEOC recommends that employers use third-party administrators (such as a medical clinic or pharmacy) to ask the medical screening questions before administering the COVID-19 vaccine (not the employer).  Employers considering implementing this policy must follow the restrictions and limits contained in the Genetic Information Nondiscrimination Act (GINA).  Under GINA, any pre-screening medical questionnaires completed by an employee to be vaccinated should be gathered by third parties (medical providers) because the disclosure of this information to an employer may trigger the ADA’s prohibition against asking disability related questions of employees.  Employers may ask disability related questions, but it needs to be job related and consistent with a business necessity.  Even if the pandemic creates a business necessity to require mandatory vaccines, this information creates future liability because knowledge of employee medical conditions can become an alleged motive in future employment actions.
  3. Proof of vaccinated status is not a medical examination or a disability-related inquiry.
  4. Employers should not ask an employee why they cannot receive the vaccine.
  5. Without proof of vaccinated status, an employer may prohibit an employee from returning to work if the company has a reasonable belief that the employee’s unvaccinated status poses a significant risk of substantial harm to the health or safety of the individual or others (i.e. direct threat).  Even in those cases, an employer is still required to reasonably accommodate an employee that cannot, or will not, be vaccinated.  The reasonable accommodation obligation stems from both the ADA (for employees that can’t get the vaccine due to medical issues) and Title VII of the Civil Rights Act of 1964 (for employees that refuse to take the vaccine for religious reasons).
  6. To determine a direct threat, employers must conduct an individualized assessment of four factors: (1) duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) imminence of the potential harm.  If an unvaccinated employee poses a direct threat, no adverse action can be taken against the employee until they have been offered a reasonable accommodation, or the accommodation causes undue hardship to the employer.  If a direct threat cannot be reduced to an acceptable level, an unvaccinated employee can be prevented from returning to the workplace.   This process shall be an individualized, interactive dialogue.
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