With the advent of COVID-19 vaccinations upon us, employers have questioned whether and under what circumstances they can require their employees to be vaccinated as a condition of their employment. Employers have also questioned what information they can request of employees in the process. In response, on December 16, 2020, the  Equal Employment Opportunity Commission (“EEOC”) issued guidance (the “Guidance”)  regarding employers, employees, and COVID-19 vaccinations, and the impact of the Americans with Disabilities Act (the “ADA”) and Title VII of the Civil Rights Act (“Title VII”) on an employers’ decision-making process.

Can Employers Make COVID-19 Vaccinations Mandatory?

The Guidance does not expressly confirm the legality of mandatory COVID-19 vaccination policies.  Instead, it assumes that employers may generally require employees to obtain a COVID-19 vaccination and provide proof of their receipt, and addresses issues which may arise under such a policy. In developing COVID-19 vaccination policies, an employer will need to consider many factors, such as whether a mandatory policy is necessary for a business, whether the employer will pay for the vaccinations, the employer’s potential liability for employee infections without a vaccination mandate, and the loss of employee goodwill.

The COVID-19 Vaccine is not a “Medical Examination” under the ADA.

The ADA regulates employers’ disability-related inquiries and medical examinations. A “medical examination” under the ADA is a procedure or test that seeks information about an individual’s physical or mental impairments or health. Consistent with previous EEOC guidance, the Guidance explains that a COVID-19 vaccination itself is not a “medical examination” under, and so is not covered by, the ADA.

Pre-Vaccination Screening Questions are “Disability-Related Inquiries” under the ADA.

To comply with the ADA, an employer must be able to demonstrate that any disability-related inquiries are “job-related and consistent with business necessity.” While a vaccination itself is not a medical exam, the Guidance explains that an employer’s pre-vaccination medical screening questions are disability-related inquires under the ADA, because they are likely to elicit information about the existence of a disability under the statute.

There are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity standard.” First, if the employer’s vaccination program is voluntary rather than mandatory. If an employee refuses to answer these screening questions, the employer may decline to administer the COVID-19 vaccine, but cannot retaliate against, intimidate or threaten the employee for refusing to answer the screening questions. Second, if an employee receives the COVID-19 vaccination from a pharmacy, for example, rather than from a third-party contracting with the employer.

Requiring Proof of Receipt of a COVID-19 Vaccination is not a “Disability-Related Inquiry” Under the ADA.

Employers must be able to demonstrate under the ADA that any disability-related inquiries are “job-related and consistent with business necessity.” According to the Guidance, simply asking for proof of an employee’s receipt of a COVID vaccination is not a disability-related inquiry under the ADA because it is not likely to elicit information about a disability. The Guidance recommends that if an employee is providing proof of vaccination by a healthcare provider or pharmacy, the employer warn the employee to avoid providing protected medical information as part of such proof.

Note that an employer who asks independent or follow-up questions, such as why an employee has not received a COVID vaccine, may elicit disability-related information from the employee. This would trigger the ADA’s requirement that the employer show the inquiry was “job-related and consistent with business necessity.”

The “Direct Threat” Standard Applies in Considering a Request for a Reasonable Accommodation.

Even if an employer institutes a generally applied, nondiscriminatory mandatory COVID-19 vaccination requirement, an employee may claim that they should be excused from being vaccinated as a “reasonable accommodation” for a claimed disability under the ADA or Title VII. The Guidance explains that, if this occurs and a disability does exist, the employer could require the employee to become vaccinated only if it can show that the employee, if unvaccinated, poses a “direct threat” to the workplace.

Whether a specific circumstance meets this requirement is determined on a case-by-case basis. Even where the employer determines that the employee, if not vaccinated, would pose a direct threat to the workplace, the ADA and Title VII may restrict the employer’s subsequent conduct.  As the Guidance indicates, the employer, for example, cannot automatically exclude the employee from the workplace or take any other adverse action, simply because the employee will not be vaccinated. The employer can only act if there is no way to provide a reasonable accommodation to the employee that would lessen or eliminate the risk that the unvaccinated individual would pose a direct threat to the workplace.

As with other reasonable accommodation inquiries, employers should carefully engage in a flexible, interactive process with employees to determine whether a reasonable accommodation, such as working remotely, is available to decrease or eliminate the risk. According to the Guidance, this process should include determining whether documentation regarding the employee’s disability should be obtained and whether possible accommodation options exist given the nature of the workforce and the employee’s position. The Guidance confirms that employers may rely on CDC guidance in determining whether a reasonable accommodation exists.

If an employer determines that no reasonable accommodation is available to decrease or eliminate the risk of the employee spreading COVID-19 in the workplace, the employer can exclude the employee from the workplace. If this occurs, the employer should not automatically terminate the employee. Instead, it must consider whether the employee’s employment is protected under any other federal, state or local law.

Conclusion

While the Guidance assumes that employers may require employees to receive a COVID-19 vaccine, employers should consider the potential liability and other risks associated with such a policy in determining whether to implement one. In addition to potential legal issues, employers should consider how a mandatory vaccination policy would affect employee morale. Employers who opt for mandatory, rather than voluntary, COVID-19 vaccination policies should, as with all employment policies, carefully develop and implement them, and ensure that such policies comply with all laws, including the ADA and Title VII. Your FOS attorney can guide you through these and other COVID-19-related employment issues.

Be well.