EEOC Issues Guidance on COVID-19 Vaccine
December 17, 2020 | DBL Law; Kelly Schoening and Erin Shaughnessy
The preeminent question as we start 2021 and the COVID-19 vaccine has now been approved by the FDA is whether employers can mandate that employees receive the vaccine. For years, many healthcare institutions have grappled with a similar question at the start of every flu season. Most hospitals and healthcare companies require employees to receive the flu vaccine to protect its workers and patients. There are generally two exceptions to this mandatory rule: religion and health-based accommodations under the Americans with Disabilities Act (“ADA”).
To meet the religious exemption, it must be a sincerely held religious belief that justifies not receiving the vaccine. However, if the employee refuses, then they should be required to wear a mask (PPE) during their entire shift.
The ADA exemption must be because it is more dangerous for the employee to receive the vaccine than not to. Employers in this situation should require a physicians’ note to justify the exemption. These employees must also wear PPE during their shifts as well.
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance on this issue as it pertains to the COVID-19 vaccine. In short, the guidance provides that federal equal employment opportunity laws, including the ADA and Title VII, do not prevent employers from requiring that employees receive the COVID-19 vaccine. The same two exceptions discussed about apply to this rule.
If an employee indicates that they are unable to receive the COVID-19 vaccination due to a disability under the ADA or because of a sincerely held religious belief, the employer must provide a reasonable accommodation to the employee. If there is no way to provide a reasonable accommodation, absent undue hardship, and the employer can demonstrate that the unvaccinated employee would pose a direct threat at the worksite, the employer may be able to exclude that employee from physically entering the workplace. However, it is important to note that this does not mean that the employer may automatically terminate the employee.
Furthermore, the EEOC also provided guidance under the ADA in the case that an employer is administering the COVID-19 vaccination to its employees. The vaccination is not considered a medical examination under the ADA because the employer is not seeking information about the employees current health status. In addition, if the employer asks pre-screening vaccination questions before administering the vaccination, as the CDC recommends, employers must be careful that these questions are “job-related and consistent with business necessity.” This is because such questions may elicit information about an employee’s disability and may be considered a disability-related inquiry under the ADA.
Finally, if an employer requires employees to receive the COVID-19 vaccination, the employer may request proof of receipt of the vaccination. This type of inquiry does not implicate the ADA. However, employers should be careful about asking subsequent questions, such as why an individual did not receive the vaccination, as this may elicit information about an employees disability and implicate additional obligations ADA.
Mandatory vaccination policies will likely be met with resistance. However, employers have a duty to keep the workplace safe and this year that has been more of a challenge than ever. The EEOC and CDC have allowed employers to ask more in-depth health questions and take employees’ temperatures due to the threat caused by COVID-19 and its highly contagious nature. Employers have been sanitizing, taking employees’ temperatures, providing sick leave, issuing guidelines on social distancing, allowing remote work, etc. It has been a year of adapting quickly and responding to a virulent disease that has sickened and killed millions.
The driving force behind this policy is to keep the workplace safe as well as customers, patients, clients, etc. This policy will be met with resistance by those fearful of the vaccine but without a legitimate exception, it can be required for employees to stay employed.
The EEOC guidance issued on the COVID-19 vaccine can be found here: COVID-19 EEOC Guidance