URGENT! COVID-19: EEOC Issues New Vaccine Guidance for Employers


All Employers


December 16, 2020


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With the first COVID-19 vaccines arriving, the U.S. Equal Employment Opportunity Commission (EEOC) finally issued guidance for employers on how to navigate the issue with employees. It added section “K – Vaccinations” to its “What You Should Know” publication to provide perspective on how vaccines intersect with the Americans with Disabilities Act (ADA), the Rehabilitation Act, GINA, Title VII of the Civil Rights Act of 1964, and the Pregnancy Discrimination Act. The guidance largely focused on vaccine pre-screen questions, mandatory vaccination, and required accommodations.

Pre-Screen Questions. Vaccine pre-screening questions from a third party, who does not have a contract with the employer (e.g., a pharmacy), do not violate employee rights because the information is not relayed to the employer. However, pre-screening questions from the employer or an employer-sponsored vaccine provider (e.g., healthcare provider is hired by employer to provide vaccines onsite) are likely to elicit medical information subject to the ADA and GINA. When the vaccine is required by an employer, prescreening questions related to disability or genetic information must be “job-related and consistent with business necessity.”

Mandatory Vaccination and Reasonable Accommodation. The EEOC’s discussion continues to acknowledge that employers may make COVID-19 vaccinations mandatory, with certain caveats. It cautioned that when requiring proof that an employee has received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer should warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

If an employee refuses to answer pre-screen questions or take the vaccine based on a disability, an employer must first have a reasonable belief, based on objective evidence, that the employee will pose a direct threat to the health or safety of themselves or others. To determine this, the employer should conduct an individualized assessment of four factors: 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 a direct threat determination is made, the employer cannot take any action unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. Even if there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under federal, state, and local law.

Similarly, employers must provide a reasonable accommodation to employees who refuse to take a mandatory vaccine based on a sincerely held religious belief, practice, or observance, unless it would pose an undue hardship under Title VII (i.e., having more than a de minimis cost or burden on the employer). Employers should assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, unless the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, in which case the employer may request additional supporting information.

As access to COVID-19 vaccines grows, employers should continue to look for updates on this issue.  States and localities may also begin to implement their own protections and rules.

Action Items

  1. Review the EEOC guidance here.
  2. Have managers trained in recognizing a request or need for accommodation.
  3. Have vaccine policies (e.g., voluntary or mandatory) prepared or updated consistent with the guidelines.
  4. Evaluate mandatory vaccine procedures, including pre-screen processes, for compliance.
  5. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.
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