Now that a COVID-19 vaccine has been approved under the FDA’s emergency use authorization, many employers may be wondering whether they can legally require employees to be vaccinated. On Wednesday, the Equal Employment Opportunity Commission (EEOC), the federal body that enforces federal workplace anti-discrimination laws, released helpful guidance on this topic. Below, we discuss employer considerations for mandating COVID-19 vaccinations.

Bottom Line: Employers can require employee vaccination as a condition of employment without violating federal anti-discrimination workplace laws, as long as certain requirements are met. An employee may be entitled to an exemption from a mandatory vaccination requirement if the employee has a disability or a sincere religious belief that prevents them from being vaccinated. In these situations, the employer must provide a reasonable accommodation for those employees unless it would pose an “undue hardship” on the employer (explained in further detail below).

Background: The EEOC enforces federal workplace anti-discrimination laws, including the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII), and the Genetic Information Nondiscrimination Act (GINA). The EEOC has stated that these federal laws continue to apply during the COVID-19 pandemic, though they do not prevent employers from implementing strategies for navigating COVID-19 in the workplace.

In March 2020, the EEOC updated guidance and hosted a webinar, which reviewed what employers could and could not do with regard to COVID-19-related inquiries and medical testing, hygiene in the workplace, reasonable accommodations, hiring, and medical disclosures in accordance with relevant federal laws. We reviewed this guidance in our previous blog post.

Recently, the EEOC released additional guidance on how the COVID-19 vaccine implicates federal anti-discrimination workplace laws, which provides insight on how employers can mandate vaccination in the workplace.

Mandatory Vaccination Requirement

Generally, for at-will employment, employers can set conditions of employment (including the requirement to be vaccinated), subject to certain anti-discrimination laws. While the EEOC guidance does not explicitly state that employers can mandate vaccination, it does provide guidance on how employers who do mandate vaccination can comply with the ADA, Title VII, and GINA.

It is important to note that this guidance only covers compliance with federal workplace anti-discrimination laws that the EEOC enforces; there may other federal, state, and local laws that are applicable to vaccination requirements. Employers implementing mandatory vaccination policies should consult with legal counsel to ensure their policy complies with applicable laws and provides any required accommodations.

Employer Administration of a COVID-19 Vaccine

If an employer (or a third-party working on behalf of the employer) administers the COVID-19 vaccine to employees, employers must consider compliance with the ADA (which prohibits employer disability-related inquires and medical examinations that are not job-related and consistent with a business necessity) and GINA (which prohibits employers from using genetic information when making employment decisions).

The EEOC states that the COVID-19 vaccination is not a medical examination and is therefore, not subject to ADA protections. On the other hand, if an employer (or a third-party working on behalf of the employer) asks screening questions prior to administering the vaccine to ensure there is no medical reason to prevent the person from receiving the vaccine (as recommended by the Centers for Disease Control), these questions are likely “disability-related inquiries” protected under the ADA and may elicit genetic information protected under GINA. As such, employers would have to meet the following requirements:

  • ADA: Pre-screening questions must be job-related and consistent with a business necessity. To meet this standard, the employer must have a reasonable belief, based on objective evidence, that an employee who does not answer pre-screening questions and therefore, does not receive the vaccination, will pose a direct threat to the health and safety of themselves or others.
    • Employers would not need to meet this standard if the (1) employer offers the vaccination to employees on a voluntary basis and makes the pre-screening questions voluntary or (2) if the employee receives the employer-required vaccine from a third party that does not contract with the employer, such as a pharmacy or health care provider.
  • GINA: Pre-screening questions that inquire about genetic information (such as family medical history) violates GINA, which prohibits employers from requesting or requiring genetic information about employees, except under very narrow circumstances. One exception to the rule is when genetic information is acquired accidentally. Therefore, employers may want to warn employees not to disclose genetic information during pre-screening questions, so any disclosure made by an employee would be accidental and not at the request of the employer. If questions about genetic information are required for safety purposes, employers may want to consider requiring proof of vaccination instead of administering the vaccine themselves to avoid non-compliance with GINA.

If employers do administer the vaccine, the ADA requires employers to keep any employee medical information confidential in a file separate from the employee’s personnel file.

Requiring Proof of Employee Vaccination

Employers can require employees to provide proof that they received the COVID-19 vaccine from a pharmacy or their own health care provider. Proof of vaccination is not, in and of itself, a disability or genetic-related inquiry protected under the ADA or GINA. On the other hand, related questions such as inquiries into why an employee did not receive the vaccination, may elicit information about a disability or genetic information that would be protected by ADA and GINA. Further, the EEOC recommends employers inform employees not to provide any other medical information with their proof of vaccination, as this may also include protected information.

Reasonable Accommodations for Employees with Disabilities

An employee may be entitled to an exemption from a mandatory vaccination requirement if the employee has a disability that prevents them from being vaccinated. Under the ADA, if an employee indicates they cannot be vaccinated due to a disability, the employer can exclude the employee from physically entering the workplace only if they pose a “direct threat” that cannot be reduced or eliminated through a reasonable accommodation (i.e. change or adjustment to a job or work environment that permits the employee to perform essential functions of a job). If an employer finds an unvaccinated employee poses a direct threat because they may expose other employees to COVID-19 at the workplace and cannot find a reasonable accommodation (absent undue hardship, explained below), the employer can exclude the employee from the workplace, but cannot automatically terminate the employee. The employee may be entitled to an alternative reasonable accommodation that does not pose such undue hardship, such as working remotely.

The EEOC encourages employers to train managers and supervisors to recognize a request for accommodation and know who that request should be referred to for consideration. The EEOC also encourages employers and employees to work together to identify accommodation options that would not constitute an undue hardship, taking into consideration the employee’s position and the nature of the workforce. Employers are not required to provide a particular accommodation if doing so causes an “undue hardship,” which means the accommodation would be unduly costly, extensive, substantial or disruptive, or would fundamentally alter the nature or operation of the business. When determining whether an accommodation causes “undue hardship,” employers should consider the cost of the accommodation, the employer’s size, financial resources, and nature and structure of its operation.

Employees may bring a lawsuit for discrimination if an employer fails to provide a reasonable accommodation (absent undue hardship), if the employer retaliates against an employee for requesting an accommodation, or if the employer discloses that an employee is receiving an accommodation. Remedies could include reasonable accommodation, hiring, promotion, reinstatement, back pay, and/or attorney’s fees.

Reasonable Accommodations for Employees with Sincerely Held Religious Beliefs

If an employer mandates vaccination and an employee indicates that their sincerely held belief, practice, or observance prevents them from receiving the vaccination, the employer must provide a reasonable accommodation, unless it would pose an undue hardship under Title VII. Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden on the employer (a less-strict standard than under the ADA). If there is no reasonable accommodation possible, then the employer could lawfully exclude the employee from the workplace but cannot automatically terminate the employee. Again, the employer should determine whether there is a reasonable accommodation for the employee (such as working from home) that does not cause an undue hardship.

Employer Next Steps

  1. Determine if your company will require, or just encourage, employees to obtain the COVID-19 vaccine.
  2. Determine whether your company wants to administer (or contract with a third party to administer) the COVID-19 vaccine or require proof of vaccination from employees.
  3. Employers who require vaccination should train their managers to recognize requests for disability or religious accommodations and designate who will be responsible for approving such accommodations.
  4. All employers should implement a framework on how to handle vaccinations and design a communication plan for notifying employees of any policy.

It is important to note that the EEOC guidance only reviews federal workplace anti-discrimination laws. Other federal, state, and local laws may also apply. As such, employers are encouraged to seek the advice of legal counsel before implementing a vaccination requirement.

Finally, Sequoia’s Return to Work Center has COVID-19-related policy design and employee tracking capabilities that provide a streamlined solution to address challenges and help your business more confidently stay compliant. Please reach out to your Sequoia Client Service team to learn more about how our Return to Work Center can assist you.

Additional Resources

Disclaimer: This content is intended for informational purposes only and should not be construed as legal, medical or tax advice. It provides general information and is not intended to encompass all compliance and legal obligations that may be applicable. This information and any questions as to your specific circumstances should be reviewed with your respective legal counsel and/or tax advisor as we do not provide legal or tax advice. Please note that this information may be subject to change based on legislative changes. © 2020 Sequoia Benefits & Insurance Services, LLC. All Rights Reserved

Emerald Law – Emerald is a Client Compliance Consultant for Sequoia, where she works with our clients to optimize and streamline benefits compliance. In her free time, Emerald enjoys stand-up comedy, live music and writing non-fiction.