The U.S. Equal Employment Opportunity Commission (“EEOC”) recently posted an updated and expanded technical assistance publication that provides information to employers and employees about how COVID-19 vaccination interacts with various legal requirements. The publication addresses issues pertaining to medical pre-screening questions and employer accommodations for those unable to receive a vaccination.

Key Takeaways Include:

1. Employers May Require Employee Vaccinations: Employers can require vaccinations under the ADA’s safety-based qualification standard. The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”
2. Beware of Disability-Related Inquiries in Pre-Vaccination Medical Screening: If an employer requires an employee to receive a COVID-19 vaccination that is administered by the employer, the employer must show that the pre-vaccination medical screening questions are “job-related and consistent with business necessity” since they could be likely to elicit information about a disability. To avoid any potential ADA landmines, employers can (1) offer the vaccination on a voluntary basis, thus allowing employees to voluntarily decide if they want to answer any disability-related pre-vaccination screening questions, and/or (2) utilize an independent third party, such as a pharmacy or health care provider, to provide the required vaccine. Remember, all employee medical information should be kept confidential and records relating to vaccination may be covered by HIPAA.
3. Employers May Ask for Proof of Vaccination: Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination does not implicate Title II of GINA, and it is not a disability-related inquiry under the ADA. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires proof that employees have 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.
4. Recognize and Respond to Disability and Religious Accommodation Requests: If an employer’s vaccination requirement screens out or tends to 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. Before excluding an employee from the workplace, the employer should consider if it can reduce the threat of risk or harm by social distancing, mask mandates, limiting the amount of contact with others, etc. Employers may rely on CDC recommendation and OSHA standards when deciding whether an accommodation is reasonable. The same is true in regard to handling employees’ religious objections to vaccinations. Employers mandating vaccines must provide reasonable accommodation to employees who indicate they are unable to receive the vaccine due to a sincerely held religious belief or practice, unless providing an accommodation would pose an undue hardship under Title VII. Undue hardship in the Title VII context is defined as anything having more than a de minimis cost or burden on the employer.
5. Check to See if Any Other Rights Apply Before Termination: Before terminating an un-vaccinated employee, employers should determine if any other rights apply under applicable federal, state, or local laws. For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely. Some workers may also be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.

It should be noted that EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions. You can review the EEOC’s full publication here. Please check the Stites & Harbison, PLLC COVID-19 Resource Page for additional information. For specific questions, please contact one of our employment attorneys.