EEOC Says Employers Can Mandate COVID-19 Vaccine
On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance and said employers will generally not run afoul of employment laws by requiring employees to obtain vaccination. However, the availability of COVID-19 vaccinations may raise questions about the applicability of various equal employment opportunity laws, and employers should take caution before implementing a vaccination mandate.
Employment Laws to Navigate
The ADA
The Americans with Disabilities Act of 1990 (“ADA”) protects employees who may have a medical condition or disability that prevents the employee from safely receiving the COVID-19 vaccine. COVID-19 vaccination may be mandated if the employer determines that an unvaccinated employee would pose a direct threat to the health and safety of individuals in the workplace under a four-factor analysis: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; (4) and the imminence of the potential harm. The EEOC stated that a direct threat determination must “include a determination that an unvaccinated individual will expose others to the virus at the worksite.”
Upon a direct threat determination, “the employer cannot exclude the employee from the workplace—or take any other 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.” If no reasonable accommodation exists for an unvaccinated employee, the EEOC makes it clear that the employee cannot be automatically terminated: “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.”
Under the updated guidance, while the COVID-19 vaccination does not constitute an impermissible medical examination, “pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.” Thus, if an employer administers the vaccine on a mandatory basis, the employer “must show that such pre-screening questions it asks employees are ‘job-related and consistent with business necessity.’” To meet the job-related and consistent with business necessity standard, the employer must show that there is “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.”
Lastly, employers are free to ask employees whether they have received a COVID-19 vaccine without running afoul of making a “disability-related” inquiry, but employers must take caution when asking follow-up questions (why an employee refused the vaccine would be subject to the ADA) or requires proof of vaccination (employees should be warned to not to provide any medical information as part of the proof in order to avoid implicating the ADA).
Title VII
Title VII of the Civil Rights Act of 1964 (“Title VII”) protects employees who sincerely hold a religious belief, practice, or observance that would prevent the employee from receiving the vaccine. The updated EEOC guidance states that once an employer is on notice of such a religious belief, practice, or observance, then the employer must either (1) provide the employee with a reasonable accommodation or (2) if no reasonable accommodation is available (or the reasonable accommodation would pose an undue hardship on the employer), then the employer may exclude the employee from the workplace. Like the ADA, Title VII prohibits automatic termination of the employee, according to the EEOC (meaning the employee may be excluded from work but not automatically fired).
Title II
Title II of the Genetic Information Nondiscrimination Act (“GINA”) protects individuals against employment discrimination on the basis of genetic information. The updated EEOC guidance states that mandatory vaccination does not implicate GINA, but that GINA rights may be implicated when the employer “requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories.”
Collective Bargaining Agreement
Though the updated EEOC guidance does not address collective bargaining agreements, employers should be mindful of collective bargaining rights if their employees are unionized. Even if the employer has a right to mandate vaccination, there may still be a duty to bargain with the union.
For more information on mandatory vaccinations and the ADA, Title VII, and Title II, visit the EEOC’s website: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, last updated December 16, 2020,
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