As COVID-19 cases surge, doses of emergency-approved vaccinations begin to be administered to first responders and the availability of a vaccine for the greater public seems more promising, the Equal Employment Opportunity Commission (EEOC) recently issued its highly anticipated guidance regarding employer-mandated COVID-19 vaccines.
Under EEOC Guidance, Employers May Generally Require Employees to Receive a COVID-19 Vaccine and Ask For Proof
The new EEOC guidance allows employers to require employees to get vaccinated for COVID-19, and to request proof of vaccination from employees. However, rather than prohibiting or endorsing a requirement that employees get vaccinated, the EEOC guidance recommends protocols for employers who decide to implement such mandates, to ensure they aren’t running afoul of anti-discrimination laws.
For example, if an employer seeks to require employees to receive the vaccination and have that vaccine administered by the employer (or a third party contractor), the employer must show that screening inquiries confirming that no medical reason would prevent the employee from receiving the vaccination are “job-related and consistent with business necessity. Further, if a vaccination requirement would 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.”
What If an Employee Claims He Cannot Be Vaccinated Because of a Disability?Under the ADA and California law, an employer can exclude an employee from the workplace because his condition constitutes a “direct threat to the health or safety of individuals in the workplace” which would place the employee or his co-workers at “significant risk of substantial harm.” Like many disability discrimination-related issues, this is a very fact-intensive inquiry, and you should carefully consider each request individually, taking into account “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.” If you conclude that an unvaccinated individual will expose others to the virus at the worksite based on these factors, you should then consider whether there is any reasonable accommodation that will suit the employee and you should carefully consider remote work or offering them another position where remote work may be possible.
What If an Employee Claims She Cannot Be Vaccinated Because of a Religious Belief?The analysis is generally the same, except instead of analyzing whether an employee poses a direct threat to herself or others, you analyze the basis of the employee’s religious belief, whether it is “sincerely held” and whether the religious belief actually prohibits vaccination. If it does, then you must engage in the same reasonable accommodation analysis.
While this is an overview of the new EEOC guidance, we recommend you contact counsel for a more detailed accountability review and compliance guidance going forward.