Member Article

In light of the Food and Drug Administration’s approval of new COVID-19 vaccines, the Equal Employment Opportunity Commission (EEOC) has issued new guidance on the legal implications of the COVID-19 vaccine under federal anti-discrimination laws.  Employers should carefully consider these points when making decisions about employee vaccinations.

1. Employers can require employees to receive a COVID-19 vaccination.

The EEOC has stated that employers can require all employees to receive a COVID-19 vaccination without violating the Americans with Disabilities Act (ADA) if the employer determines that having an unvaccinated employee poses a “direct threat” to the health and safety of the individual and others the workplace. According to the EEOC, to decide there is a “direct threat,” the employer must determine that “an unvaccinated individual will expose others to the virus at the worksite.”

The Genetic Information Nondiscrimination Act (GINA) forbids employers from making decisions based on an employee’s genetic information or family medical history.  The EEOC has determined that requiring the COVID-19 vaccine does not implicate GINA because, as explained by the CDC, the vaccine “[does] not interact with our DNA in any way.”

2. Employers must make reasonable accommodations for employees who are unable to receive a vaccination due to a disability.

If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite as described above, the employer cannot exclude the employee from the workplace if there is any reasonable accommodation that would reduce the risk so the employee no longer poses a direct threat.  The employer should engage in the interactive process and provide accommodations, which might include things like allowing employees to work from home or taking medical leave, unless the accommodation poses an undue hardship. Supervisors who are charged with communicating with employees about vaccination should be trained on how to recognize a request for accommodation. 

3. Employers must make reasonable accommodations for employees who are unable to receive a vaccination due to their religious beliefs.

Under Title VII of the Civil Rights Act of 1964, once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents or prohibits him/her from receiving a vaccination, the employer must offer the employee a reasonable accommodation unless it would pose an “undue hardship” to the employer. In the religious context, an undue hardship means the accommodation would impose more than a minimal cost or burden on the employer. Employers should generally not question the validity of an employee’s claimed religious beliefs or practices, but they may ask for additional information if they have an objective basis for questioning the sincerity of the belief or practice. 

4. Employers should apply existing COVID-19 standards to those who cannot or do not get a vaccination.

The EEOC has stated that an employer can exclude an unvaccinated employee from the worksite. 

The inquiry into whether an unvaccinated employee is allowed to come to the worksite should be substantially the same as the inquiry employers have already been conducting to determine when an employee who has a COVID-19 diagnosis or symptoms can come to work. This includes considering how many employees have received the vaccine, the employee’s specific job duties, and the nature of the workplace.  An unvaccinated employee who cannot be or is not entitled to be accommodated may be terminated, as long as no other rights under federal, state, or local laws apply. 

5. Vaccinations are not medical examinations.

Under the ADA, employers are usually not allowed to ask employees to submit to medical exams for the purposes of seeking medical information, unless these exams are “job-related and consistent with business necessity.” Because the purpose of a vaccination is to protect an employee against contracting COVID-19, it is not a medical exam.

6. Employers should consider having the vaccination administered by a third party instead of administering it themselves.  

The EEOC has stated that pre-vaccination screening questions might implicate the ADA and GINA because they may require an employee to provide genetic information, medical history, or disability information, making the screening a medical exam.  To avoid potential ADA and GINA issues, an employer may make the vaccination and pre-screening questions voluntary, or require an employee to go see a third-party healthcare professional for the vaccination and associated pre-screening questions instead of administering the vaccine themselves. 

7. Employers may require employees to provide proof of vaccination.

Requiring employees to furnish proof of their vaccination is not a medical exam and is allowable under the ADA and GINA.  However, asking an employee why they did not receive a vaccination might not be allowable as it may disclose disability or genetic information.  Employers can ask employees to ensure that the proof of vaccination they receive from a healthcare provider does not contain any other medical information. 

8. Employers can provide information to employees about the vaccine.

Some COVID-19 vaccines are only available under a special Emergency Use Authorizations (EUA), which is different than full FDA approval.  Under an EUA, vaccine recipients are required to receive certain information about the vaccine, which is contained in a patient fact sheet that is provided at the time of vaccine administration.  Employers can access these EUAs to obtain more information about vaccination, and may choose to provide them to employees who are required to take the vaccine.