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New EEOC Guidance Permitting Required COVID-19 Vaccinations and Addresses Certain Objections

Labor & Employment Otto Immel, Alexis Barkis

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Employers Can Require Employees To Get A COVID-19 Vaccination

On December 16, 2020, the United States Equal Employment Opportunity Commission (“EEOC”) issued anticipated guidance on the ability of employers to require their employees to get a COVID-19 vaccination and related considerations. According to the EEOC, employers may adopt a policy requiring employees to get a COVID-19 vaccination but these policies may raise issues under certain federal laws, such as the Americans with Disabilities Act (“ADA”) and Title VII. Although the guidance does not outright say that such a policy is lawful, it infers their lawfulness by addressing issues that may arise after an employer has adopted such a policy relating to employees who indicate that they are not able to get vaccinated due to a disability or a sincerely held religious belief.

Disability Implications

Under the ADA, employers may not require medical examinations or make inquiries relating to an employee’s disability unless the examination or inquiry is “job-related and consistent with business necessity.” The EEOC clearly stated that the requirement to get vaccinated, the administration of the vaccine, and/or requiring proof of vaccination are not in and of themselves medical examinations or inquiries under the ADA. Although requiring proof that an employee received a COVID-19 vaccination is not a disability-related inquiry, subsequent questions, such as why an individual did not receive a vaccination, would likely elicit information about a disability, implicate the ADA, and therefore must be “job-related and consistent with business necessity.” Similarly, pre-vaccination screenings, which are required by the CDC, are also likely to elicit information about a disability and must also be “job-related and consistent with business necessity.” In order to meet this standard, the employer must have “a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”

If an employee indicates that he or she is unable to receive a COVID-19 vaccination due to a disability, employers must assess whether having the unvaccinated individual in the workplace poses 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.” If having the employee in the workplace poses a direct threat, the employer must determine whether a reasonable accommodation would eliminate or reduce the risk posed by having the unvaccinated employee in the workplace. Depending on the employee’s position and duties, a reasonable accommodation may be allowing the employee to work remotely—particularly if the employee had been doing so successfully during the pandemic. Employers are not required to provide an accommodation that would pose undue hardship on the employer. 

If the employer finds that there are not any reasonable accommodations that would reduce or eliminate the risk that the unvaccinated employee poses, or an accommodation would pose undue hardship on the employer, the employer may exclude the employee from the workplace. As with any ADA situation, an individualized, fact-based analysis is required.

Sincerely Held Religious Practice or Belief

The EEOC also addressed when an employee’s sincerely held religious belief, practice, or observance prevents him or her from receiving the vaccination. If an employee indicates they are unable to get a COVID-19 vaccination due to a sincerely held religious belief, practice, or observance, employers must provide a reasonable accommodation to the employee unless doing so would pose undue hardship on the employer. Courts have defined undue hardship under Title VII as having more than a de minimis cost or burden on the employer.

If an employer is unable to provide a reasonable accommodation for the religious belief, practice, or observance, it may exclude the employee from the workplace.

In sum, employers may require COVID-19 vaccinations and exclude unvaccinated employees from the workplace as set forth above. Excluding employees from the workplace may not always mean terminating the employee as the employee could be eligible for unpaid leave or other rights under federal, state, or local law.

Other Considerations

While mandatory vaccination absent a disability or religious based objection may be lawful, employers considering their vaccination policy should also weigh potential effects of a mandate on employee morale. For some employers/industries, implementing a voluntary, incentive-based vaccination program may be a better approach. Although encouraging, rather than mandating, vaccinations may result in fewer vaccinated employees, voluntary programs may have positive morale benefits, cost savings, and reduced administrative burdens.

Vaccination policies and other timely management issues during the later stages of the pandemic will be the subject of a Quarles & Brady Webinar in early 2021. Be on the lookout for an invite from Quarles & Brady in the coming weeks.

If your organization has any questions on the EEOC guidance of the Covid-19 vaccination, please contact the following or your Quarles & Brady attorney: