COVID-19 vaccines have arrived. Employers now must ask themselves whether they may require employee vaccinations after the vaccines become readily available. The U.S. Equal Employment Opportunity Commission (EEOC) has published new guidance aimed at helping employers tackle the wave of inquiries and issues that will arise once vaccinations become widely available. In short, the EEOC's new guidance says yes, employers can mandate vaccination, subject to some potential exceptions relating to compliance with disability and religious anti-discrimination and accommodation laws.
A few notes about the EEOC's guidance:
- the guidance is neither binding nor law—it is the EEOC's current views on existing law;
- the guidance appears to be aimed at non-healthcare employers, rather than healthcare providers where vaccination is of increased import and public health and safety considerations may apply;
- the guidance may change—not only are vaccines just becoming available, but a new administration will be taking over shortly;
- this addresses the EEOC's views on the application of federal anti-discrimination laws, not state or local laws, which may differ (and which employers should always reference before requiring vaccination).
Potential Exception #1: Disability
The first potential exception is an employee's disability, which may implicate the Americans with Disabilities Act (ADA). If an employee has a disability that prevents them from being able to safely receive the COVID-19 vaccine, the EEOC takes the position that the employer must determine whether the unvaccinated employee poses a direct threat to the health and safety of the employee or others at the worksite. Notably, the EEOC does not opine on when, in the context of COVID-19, an unvaccinated worker might not pose such a threat, except to generally note that a direct threat "would include a determination that an unvaccinated individual will expose others to the virus at the worksite." Nor does the EEOC provide guidance as to what conditions, if any, would affect an employee's ability to safely receive the vaccine.
Next, assuming the employee cannot safely receive the vaccine because of a disability, the EEOC explains that the employer should determine whether it can accommodate the employee's need by other reasonable means, such as a remote work arrangement, without undue hardship. Undue hardship, for purposes of accommodating disabilities, means "significant difficulty or expense." In some situations, remote work may not be possible in light of the employee's primary job duties. If the employee's disability affecting vaccination is temporary, a leave of absence during the period of disability may be appropriate in some circumstances. But if no reasonable accommodation is available and the employee cannot, or will not, receive the vaccine, termination of employment is an option.
Potential Exception #2: Sincerely Held Religious Belief or Practice
The second potential exception is an employee's sincerely held religious belief or practice, which may implicate Title VII of the Civil Rights Act of 1964. If an employer learns that an employee objects to vaccination because of a sincerely held religious belief or practice, the EEOC states that the employer should try to reasonably accommodate the religious belief unless the accommodation would pose an undue hardship. Of note: "undue hardship" in the context of religious accommodations under Title VII means "more than a de minimis cost or burden on the employer"—which means that even relatively small costs and burdens will qualify as an undue hardship under Title VII.
The EEOC also states that employers are not required to automatically accept the legitimacy of an employee's claimed religious objection. If an employer has an objective basis for questioning either the religious nature or the sincerity of the employee's religious objection, the employer may request that the employee provide additional supporting information. If the employee is unable to establish the religious nature or sincerity of the religious objection, the employer may deny the accommodation request.
Proof of Vaccination Is Permitted
Subject to these two exceptions, the EEOC's position is that employers may require an employee to receive a vaccination that the employer administers or proof of receipt of a COVID-19 vaccination. The EEOC cautions that employers should be careful about the scope of any pre-vaccination screening questions (if employer-administered) or their information request (if requiring proof of vaccination). Mere proof of vaccination is generally permitted because it does not cross the line into a disability-related inquiry. However, follow-up questions about why an employee did not receive a vaccine may elicit disability-related information. If disability-related information is elicited, the ADA requires the inquiry to be job-related and consistent with the employer's business necessity. In order to avoid implicating the ADA disability-inquiry standard, employers should consider warning their employees not to provide medical information when providing proof of vaccination.
Savvy employers will start planning now for the bright day when COVID-19 vaccines are readily available to the public. Employers should consider training their managers and human resources staff on how to distinguish disability and religious accommodation requests from mere resistance to vaccination, as well as the dos and don'ts of eliciting medical information from employees. To receive more information about how to implement a mandatory vaccination policy or train employees, please contact any of the authors of this article or any of Venable's other labor and employment attorneys.