The EEOC's Updated Guidance Addressing COVID-19 Vaccinations Places Workplace Bias Considerations Center Stage

Given the Food and Drug Administration’s (FDA) authorization of Pfizer’s COVID-19 vaccine for emergency use, employers face complex questions with respect to whether they can require employees to get vaccinated before returning to the workplace. In a December 16, 2020 updated guidance, the Equal Employment Opportunity Commission (EEOC) provided clarification regarding employer mandated vaccination programs. Below are the key takeaways.

Mandatory Vaccination Policies are not Per Se Unlawful

While the EEOC’s guidance does not unequivocally state that mandatory vaccinations are lawful and acceptable, the guidance does provide that employers may require employees to take the COVID-19 vaccine subject to considering accommodations for disabilities and religious beliefs under the Americans with Disabilities Act (ADA), Title VII, and other anti-discrimination laws.

Reasonable Accommodations for Disabilities under the ADA

The EEOC clarifies that employers imposing mandatory vaccines must provide reasonable accommodations to disabled employees, including employees who have disabilities that could prevent them from receiving a COVID-19 vaccine, unless doing so would cause “undue hardship” (i.e., would impose significant expense or difficulty) under the ADA.

Protocols for Responding to Disability Related Concerns

The EEOC’s guidance addresses how employers with a mandatory vaccine policy should respond to employees who indicate they cannot be vaccinated due to a disability. The guidance states an employer may require that an employee not pose a direct threat to the health or safety of other employees, but when such a requirement may screen out individuals with disabilities, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm” that cannot be eliminated by reasonable accommodation. To determine whether a direct threat exists, the EEOC recommends employers perform an individualized inquiry weighing four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood the potential harm will occur; and (4) the imminence of the potential harm.

If an employer determines there is a direct threat posed by an employee who cannot be vaccinated due to a disability, the EEOC advises the employer to evaluate whether it can provide a reasonable accommodation to reduce the direct threat without undue hardship. Employers must engage employees “in a flexible, interactive process to identify workplace accommodation options,” including but not limited to remote work or temporary leaves of absence, such as leaves available under the Families First Coronavirus Response Act (FFCRA) or Family and Medical Leave Act (FMLA). The EEOC guidance requires an employer to consider various factors while assessing possible accommodation options, including the nature of an employer’s workforce; the affected employee’s particular position; the prevalence in the workplace of workers who have already obtained a vaccination; as well as the potential contact of an unvaccinated employee with others whose vaccination status is unknown.

Once it is clear that an employee who is unable to be vaccinated poses a direct threat that cannot be mitigated with reasonable accommodation (or providing accommodation poses an undue hardship), employers may “exclude” such an employee from the workplace. The EEOC guidance provides that such an exclusion is temporary—and for the purposes of reducing a direct threat—and does not mean an employer can automatically terminate such an employee.

The EEOC guidance also reminds employers that under the ADA, it is unlawful both to retaliate against an employee requesting accommodation and to disclose that an employee is receiving a reasonable accommodation. Employers must therefore ensure they do not reveal information indicating which employees have (or have not) received vaccinations.

Reasonable Accommodations for Religious Beliefs under Title VII

Similarly, under Title VII, if an employee has a sincerely held religious belief, practice or observance that prevents the employee from taking a vaccine, the employer must reasonably accommodate such an employee unless doing so would present an undue hardship. In the context of religious accommodations under federal law, “undue hardship” is defined as “more than a de minimis cost or burden to the employer.”

Protocols for Responding to Religious Objections

As with the ADA, consideration of possible reasonable accommodation for a religious belief is intended to be individualized and fact-based, and employers are encouraged to engage in an interactive process with the employee requesting accommodation. 

Requests for Documents to Establish Need for Accommodations

According to the EEOC’s guidance, employers may request documentation supporting employees’ accommodation requests for disability or religious reasons. While the guidance discusses the recommended procedure for seeking documentation from medical providers in cases involving disability related accommodation, it does not provide insight regarding appropriate documentation to support accommodation of religious beliefs precluding vaccination.

COVID-19 Vaccine Is Not a “Medical Examination” under the ADA

Under the ADA, employers may not require medical examinations or make inquiries into the nature or severity of a disability, unless such examinations or inquiries are “job-related and consistent with business necessity.” The EEOC’s guidance clarifies that administering the vaccine is not a prohibited a “medical examination” under the ADA.

COVID-19 Vaccine is not a Request for Genetic Information under GINA

Under Title II of the Genetic Information Nondiscrimination Act (GINA), employers may not discriminate against employees because of genetic information, and may not request employees disclose genetic information. The EEOC guidance provides that while several COVID-19 vaccines use mRNA technology, neither administering a COVID-19 vaccine to employees nor requiring employees to provide proof of a vaccination is prohibited by GINA. Notably, because the CDC explained that mRNA vaccines do not interact with our DNA, the EEOC concludes that requiring employees to receive an mRNA vaccination is not prohibited by GINA.

Vaccine Related Pre-Screening Inquiries May Violate the ADA and/or GINA

Although the administration of the vaccine is not a medical examination under the ADA, the EEOC guidance states that pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries (i.e., inquiries likely to elicit information about a disability). As noted, employers may ask pre-screening questions constituting a medical inquiry under the ADA only when the questions are “job-related and consistent with business necessity.” To meet this threshold, employers must have a reasonable belief, based on objective evidence, that employees who do not answer the questions and, therefore, do not receive a vaccination, will pose a direct threat to the health or safety of themselves or others. 

The guidance provides two exceptions to the above requirement: (1) where the vaccine program is voluntary and therefore the employee’s decision to answer pre-screening questions is voluntary; and (2) when the employee receives an employer-required vaccine from a third party that does not have a contract with the employer, such as a pharmacy or other healthcare provider.

The EEOC’s guidance also notes that pre-screening questions seeking genetic information, such as family members’ medical histories, may violate GINA. The guidance provides that, because it remains unclear what screening checklists will accompany COVID-19 vaccinations, employers who want to ensure employees have been vaccinated should consider requesting proof of vaccination rather than administering the vaccine themselves.

Confidentiality Requirements Related to Pre-Screening Inquiries

The EEOC guidance reminds employers that regardless of whether employers meet the “job-related and consistent with business necessity” standard, the ADA requires employers keep any employee medical information obtained in the course of a vaccination program confidential. Employers should also evaluate and follow Health Insurance Portability and Accountability Act (HIPAA) considerations with respect to maintaining employees’ vaccination records.

Requiring Proof of Vaccination

According to the EEOC, requiring employees to provide proof of receipt of a COVID-19 vaccination is neither a disability-related inquiry under the ADA nor a request for genetic information under GINA. Thus, employers may require employees to provide proof they received a vaccine from another provider. However, the EEOC guidance provides that certain other questions, such as why employees did not receive a vaccination, may qualify as medical inquiries under the ADA and are permitted only when such inquiries are job-related and consistent with business necessity.

EEOC’s Discussion of the FDA’s Emergency Use Authorization

On December 11, 2020, the FDA issued an Emergency Use Authorization (EUA)[1] for the Pfizer-BioNTech COVID-19 Vaccine to be distributed in the U.S. Mirroring the federal statute governing the FDA’s recent EAU, the EEOC guidance provides that for any vaccine issued under an EAU, the FDA and the vaccination provider (currently Pfizer) are obligated to inform vaccine recipients: (1) about the potential benefits and risks of the vaccine; (2) about the extent to which such benefits and risks are unknown whether any alternative products are available; and (3) “that they have the option to accept or refuse the vaccine.”

Action Items for Employers

  • Determine whether your business requires a mandatory vaccination policy. Recognize that a policy that encourages vaccinations may ultimately yield positive results if accompanied by clear policies and strong employee communication protocols.

  • In addition to reviewing federal guidance, such as the EEOC guidelines, consider additional state regulations while developing a vaccination program. Establish written vaccination policies in consultation with employment counsel that comply with federal, state and local regulations, and include clear policies regarding the accommodation process in relation to any COVID-19 vaccination program.

  • In collaboration with counsel, develop and implement policies and procedures for administering any mandatory or voluntary employer vaccination policy, including processes for requiring proof of a COVID-19 vaccine, reminding employees not to provide medical or genetic information as part of the proof, ensuring confidentiality of employees’ medical information (whether provided intentionally or unintentionally) protected by the ADA, GINA and/or HIPAA, reviewing accommodation requests, documenting direct threats that cannot be mitigated even with accommodation, and administering discipline to employees who violate established policies.

  • Work with counsel to develop protocols for internal and external communications, including ways of updating employees regarding public health recommendations as well as communicating any company vaccination policy to customers, guests, and other third parties.

  • Train supervisors responsible for communicating with employees about an employer-implemented vaccination program so they can recognize requests for accommodation and advise employees regarding procedures for initiating the interactive process.

  • Recognize that in the case of unionized employees, collective bargaining obligations may present additional or different considerations with respect to any vaccination policy

[1] An EUA is a mechanism allowing the FDA to authorize the use of unapproved medical products, or unapproved uses of approved medical products in an emergency to diagnose, treat, or prevent serious or life-threatening diseases or conditions when certain statutory criteria have been met, including that there are no adequate, approved, and available alternatives.

If you have questions regarding the EEOC's vaccination guidelines or any other issue related to employment law, please contact one of our attorneys:

hareholders Associates
Eric C. Bellafronto Ernest M. Malaspina Sean Bothamley
Karin M. Cogbill Richard M. Noack Jonathan Heller
Jennifer Coleman Daniel F. Pyne III Shirley Jackson
Michael Manoukian
Elaisha Nandrajog

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