EEOC Releases Guidance for COVID-19 Vaccinations

With the first batches of the long-anticipated COVID-19 vaccine being distributed across the U.S., the Equal Employment Opportunity Commission released guidelines for employers and workplace vaccinations. What are these new guidelines relating to employment laws and what should employers know when mandating vaccinations?

What’s the Story?

The Equal Employment Opportunity Commission (EEOC) released new guidelines, called a technical assistance publication, for employers and employees about how a COVID-19 vaccinations interacts legally with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). 

These three legal requirements play a huge role in HR teams’ daily operations, so it’s important to note how they relate to vaccination guidelines for the workplace. It’s also important that employers check with their local state laws that apply.

The EEOC enforces workplace anti-discrimination laws, including the laws mentioned above. The Americans with Disabilities Act (ADA) prohibits discrimination against individuals with disabilities, requires reasonable accomodation, and includes rules about employer medical inquiries. Title VII of the Civil Rights Act prohibits discrimination based on race, color, national origin, religion, and sex, including pregnancy, and GINA prohibits discrimination of employees or applicants based on genetic information.

What are the New Guidelines?

The EEOC made updates to guidelines for workplace vaccinations and how they relate to the following laws:

1. Exceptions for employer-mandated vaccines under ADA and Title VII: Employers can require vaccinations, but are subject to legally-protected exceptions under ADA and Title VII. The ADA allows employers to maintain the standard that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if this excludes an employee with a disability—and if a reasonable accommodation cannot be made—the employer must prove that an unvaccinated employee would pose a “direct threat” to the health and safety of the other individuals in the workplace. 
   Likewise, employers who mandate vaccinations are also subject to legally-protected exceptions under Title VII. Employers must provide accommodation for employees with sincerely held religious beliefs or practices that prevent vaccination, as long as the accommodation does not present an undue hardship, which is defined as “more than a de minimis cost or burden to the employer.” Employers may also request documentation in support of this request.
2. Classification of the vaccination: The vaccination is not classified as a medical examination for the purposes of ADA. According to the EEOC, “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.”
3. Pre-screening questions: According to the EEOC, pre-screening questions for the COVID-19 vaccine are likely to disclose information about a disability and are therefore subject to ADA standards for disability-related inquiries. Pre-screening questions must be job-related and consistent with business necessity—there must be reasonable belief that an employee who does not get vaccinated will pose a direct threat to the health or safety of others. 
   Pre-screening questions may also elicit genetic information or family medical history. If so, then employers may want to request proof of vaccination instead of administering the vaccine themselves. It’s important to note that GINA prohibits doctors working for employers from asking questions about genetic information, in addition to employers themselves.
4. When reasonable accommodation is not available: If there is no reasonable accommodation possible, then the employer can exclude the employee from physically entering the workplace, but the employer cannot terminate the worker automatically. According to the EEOC, this is similar to protocol for physically excluding employees from a workplace due a COVID-19 diagnosis or symptoms; some employees may be entitled to work remotely or, if eligible, take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.