EEOC Issues COVID-19 Vaccine Guidance on Workplace Bias Issues

On December 16, 2020, the Equal Employment Opportunity Commission updated its COVID-19 guidance to discuss the COVID-19 vaccination and its implication on the laws they enforce, including the Americans with Disabilities Act and the Rehabilitation Act, GINA, and Title VII.

The new guidance reiterates what has been discussed in previous articles. Specifically, the guidance mandates that employers engage in the interactive process if an employee cannot get the vaccine due to religious or disability reasons. The guidance does not unequivocally answer whether employers can mandate the vaccine but instead discusses issues that can come up if an employer does mandate the vaccine.

From previous guidance, we know that COVID-19 is considered by the EEOC to be a direct threat. Whether something is a direct threat is determined based on the best available objective medical evidence from CDC or other public health authorities. Employers will be acting consistently with the ADA as long as any screening implemented is consistent with advice from the CDC and public health authorities for that type of workplace at that time. Therefore, employers should do an evaluation of their workplace to see if mandating the vaccine would be appropriate. They should also look to the CDC and public health authorities for guidance on mandating vaccines. If employers do mandate the vaccine, they should determine whether they will require it for all positions or only certain positions. Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request. Employees should also be reminded of your accommodation process.

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker. For example, suppose an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement. In that case, the employee may be entitled to accommodations such as performing the current position remotely. Lastly, companies should also be prepared for employee relations issues and potential public relations issues that could go along with mandating a vaccine.

Some additional guidance from the EEOC:

  • The vaccination itself is not a medical examination.
  • Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a prohibited disability-related inquiry.
  • If an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.
  • Employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and be subject to the pertinent ADA standard of job-related and consistent business necessity.
  • Suppose an employer requires employees to provide proof that they have received a COVID-19 vaccinations from a pharmacy or their own health care providers. In that case, the employer may want to warn employees not to provide any medical information as part of the proof to avoid implicating the ADA.
  • Employers can provide employees with more information about Emergency Use Authorization vaccines on the FDA’s EUA page.

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