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12.23.20   |   Insights

EEOC Publishes Guidance on Employer COVID-19 Vaccination Policies

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The US Equal Employment Opportunity Commission has issued guidance to employers considering COVID-19 vaccination policies for their employees.  The guidance, issued as part of a question-and-answer format on the EEOC website, indicates that employers will be permitted to require most employees to obtain a vaccination as a condition of employment.

This general rule comes with a big caveat, however.  Employers must make reasonable accommodations, when needed, for employees with disabilities that may prevent them from obtaining a vaccination, pregnant employees, and employees with religious objections to vaccines.  As with every type of accommodation analysis, requests for accommodations require an employer to proceed carefully.

Notably, the guidance was disclosed as part of a set of technical assistance questions and answers that have been supplemented and modified throughout the pandemic, meaning that the rules are not set in stone and are subject to change as developments related to the pandemic warrant. 

Although the vaccine is not expected to be available widely for several months, employers should be thinking about whether to adopt a policy requiring employees to receive the vaccination.  Health care and other higher-risk businesses are likely to impose such a requirement, while other businesses may elect to strongly encourage, rather than require, their employees to be vaccinated. 

For employees requesting an exemption from an employer vaccine requirement based upon health or religious reasons, an individualized inquiry in each case is required.  In making such an inquiry, employers should be mindful of what questions are permissible relating to health and vaccination status.

The American’s with Disabilities Act generally prohibits an employer from making disability-related inquiries, unless such inquiry is job-related and consistent with business necessity.

The EEOC guidance indicates that merely requesting proof that an employee has received a COVID-19 vaccination is not prohibited, because such a request is unlikely to elicit information about a disability.  However, follow-up employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and therefore would be subject to the ADA’s rule that all questions be job-related and consistent with business necessity.  Questions should be carefully tailored, and questions relating to an employee’s genetic history must be avoided.  Employers are encouraged to consult with legal counsel to determine permissible lines of questioning.

The EEOC appears to have concluded that an unvaccinated employee in the workplace can, at least under some circumstances, be a direct threat to the health and safety of others in the workplace.  Thus the employer must analyze whether a reasonable accommodation could be made to reduce or eliminate the direct threat.  Depending upon workplace circumstances, reasonable accommodations could include permitting working from home, working in an environment secluded from co-workers, or continuing existing protocols involving masking, social distancing and sanitization. 

As with other disability related discussions, the EEOC encourages employers and employees to engage in a flexible, interactive process to identify whether the employee has a disability or a sincerely held religious belief that would preclude getting a vaccination.  If so, an accommodation must be made, if an accommodation continues to permit the employee to perform the job’s essential functions, and the accommodation does not entail an “undue hardship” upon the employer. 

The EEOC also stated, “The prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.”  This statement, while ambiguous, can be construed as suggesting that if the large majority of a workforce is vaccinated, it may be less of a hardship to allow a small number to remain unvaccinated because of their disability, pregnancy, or religious belief.

In some work environments, there may not be a reasonable accommodation that will permit the employee to remain in the workplace.  Decisions about terminating employees for refusing to take a vaccination should be discussed with counsel. 

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