The Equal Employment Opportunity Commission recently updated its technical assistance document on equal employment opportunity laws and COVID-19 to provide additional guidance related to vaccines.
The guidance answers several questions related to the administration of and potential requirement for COVID-19 vaccinations of health care workers.
The EEOC has been updating its guidance on a variety of employment-related topics throughout the pandemic. The most recent revisions add a Section K devoted exclusively to frequently asked questions regarding vaccines.
The guidance clarifies that an employer may mandate COVID-19 vaccines but must comply with the Americans with Disabilities Act and Title VII of the Civil Rights Act. Vaccination may be required if the employer determines unvaccinated individuals pose a “direct threat” — significant risk of substantial harm — by exposing others in the workplace to COVID-19. However, if an individual cannot receive a vaccine because of a disability, the employer must consider whether a reasonable accommodation can be made, such as allowing the person to work remotely or otherwise minimizing contact with patients and other staff. The guidance urges employers to consider guidance from the Centers for Disease Control and Prevention and the Occupational Safety and Health Administration in assessing workplace safety and potential accommodations.
Similarly, an employer must provide a reasonable accommodation to employees who refuse to be vaccinated due to a sincerely held religious belief unless it would pose an undue hardship on the employer. The guidance cautions that the term religion is defined broadly and may encompass beliefs and practices unfamiliar to the employer. If an employer objectively questions the nature or sincerity of the objection, it may request additional information from the employee to support the request.
The administration of the vaccine, either directly by an employer or via a third party engaged by the employer to administer the vaccine, is not a medical examination triggering record-keeping or EEOC laws, such as the Americans with Disabilities Act. However, the EEOC cautions prescreening questions may implicate the ADA’s general prohibitions on disability-related inquiries unless “job-related and consistent with business necessity.” Based on the patient fact sheets that must be disseminated before vaccine administration, vaccinators likely are to ask certain screening questions that could elicit information about a disability. If the employer is mandating the vaccine, such disability-related inquiries must be job-related and consistent with business necessity. If vaccination is voluntary or the vaccine is received from a third party with no contractual relation to the employer (such as an independent retail pharmacy), the employer need not be concerned with screening questions.
Asking an employee to provide proof they have been vaccinated does not trigger ADA concerns unless the employer asks questions that could elicit information about a disability, such as why the employee did not get vaccinated.