On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued revised COVID-19 guidance effectively permitting employers to implement mandatory COVID-19 vaccination policies for employees as long the employer: 1) follows accommodation requirements for disabilities and religious beliefs; and 2) allows employees to receive the vaccine from a third party that does not have a contract with the employer.
Mandating Vaccination is Generally Permitted under the ADA
The EEOC guidance provides that asking or requiring employees to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry under the Americans with Disabilities Act (ADA). Thus, employers may request or require employees to provide proof of receiving a vaccine from another provider.
If, however, an employer administers the vaccine, or a contractor does so on its behalf, the employer must show that vaccination pre-screening questions are job-related and consistent with business necessity. In order to do this, an employer must show that an employee who refuses to answer pre-screening questions, and therefore cannot receive the vaccine, will pose a direct threat to the health or safety of him/herself or others. Two exemptions exist:
- The vaccine program is voluntary and therefore the employee’s decision to answer pre-screening questions is voluntary.
- The employee receives an employer-required vaccine “from a third party that does not have a contract with the employer, such as a pharmacy or other healthcare provider.”
Bottom line: it is permissible for all employers under the ADA to mandate the COVID vaccine (subject to accommodation requests as described below), as long as the employees receive the vaccine from a third-party pharmacy or other medical provider with which the employer does not have a contract.
Reasonable Accommodation Issues under the ADA
The EEOC advises that employees’ disabilities must be accommodated under the ADA. The ADA permits an employer to have a qualification standard, such as a vaccination requirement, that requires “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If, however, a vaccination requirement screens out an individual with a disability, the employer must conduct an individualized assessment to determine whether an unvaccinated employee would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Four factors are relevant in determining whether a “direct threat” exists:
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.
If the employer concludes there is a direct threat from that unvaccinated individual, then the employer and employee should engage “in a flexible, interactive process to identify workplace accommodation options”.
An employer need not provide a particular reasonable accommodation if it poses an “undue hardship” under the ADA, which means causing the employer “significant difficulty or expense.” In determining whether undue hardship is present, the EEOC states that employers should consider the prevalence of employees in the workplace who receive the vaccine.
If there is no reasonable accommodation, absent undue hardship, that would eliminate or reduce the risk posed by an unvaccinated employee, the employer can exclude the employee from entering the workplace. Exclusion from the workplace is not the same as termination from employment, as employees may be able to telework or take leave.
Compliance with Religious Accommodation Requirements under Title VII of the Civil Rights Act
The EEOC advises that employers mandating vaccines must also provide reasonable accommodations to employees who indicate they are unable to receive the vaccine due to a sincerely held religious belief or practice, unless providing an accommodation would pose an undue hardship under Title VII of the Civil Rights Act.
The EEOC advises that employers should normally assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief. However, if the employer has an objective basis for questioning the religious nature or sincerity of the belief, the employer can request documentation. If there is no reasonable accommodation absent undue hardship, the employer can exclude the employee from entering the workplace.
GINA does not apply
Finally, the EEOC guidance confirms that neither administering a COVID-19 vaccine to employees nor requiring employees to provide proof of a vaccination is prohibited by the Genetic Information Nondiscrimination Act (GINA). The U.S. Centers for Disease Control and Prevention (CDC) has explained that mRNA vaccines “do not interact with our DNA in any way,” and therefore the EEOC concludes that requiring employees to receive an mRNA vaccination is not prohibited or governed by GINA.
In sum, employers may lawfully request or mandate that employees receive COVID-19 vaccinations from a third party in order to protect the health and safety of the employees and others; however, any mandatory vaccine programs must follow accommodation requirements for disabilities and religious beliefs.