On December 16, the U.S. Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance to clarify that employers may implement mandatory vaccination polices once a COVID-19 vaccine becomes widely available, but any such policy must meet certain requirements under federal anti-discrimination laws.
Consistent with its previous guidance regarding mandatory vaccinations, the EEOC stated that employers may require that employees receive a COVID-19 vaccine before reporting to work; however, employers must consider accommodations for workers who refuse to get vaccinated due to a medical disability or sincerely held religious belief.
First, with respect to the Americans with Disabilities Act (ADA), the updated EEOC guidance provides some clarity of the considerations and process for an employer to take into account when reconciling a mandatory vaccination requirement with an employee who has a disability and who seeks an accommodation from the requirement. Per the updated guidance, an employer may exclude an employee with a covered disability from reporting to work when that employee poses a “direct threat” to the health and safety of other workers. Thus, an employer can implement a mandatory vaccination policy to reduce the threat of workplace exposure to COVID-19. However, even where such a direct threat exists, the employer must conduct an individualized assessment to determine whether the threat could be reduced through a reasonable accommodation, such as permitting the employee to continue working remotely or adjusting the employee’s duties to reduce the amount of contact with others. If the direct threat cannot be reduced without undue hardship, the employer may bar the employee from physically entering the workplace, but the employer may not automatically terminate the employee. Instead, employers will need to determine if any other rights apply under other federal, state, and local authorities. For instance, an employee who declines a vaccine due to a disability may potentially be eligible to take leave under the Families First Coronavirus Response Act, the FMLA, or other Company leave of absence policy.
Likewise, under Title VII of the Civil Rights Act (and analogous state and local laws), an employer must provide a reasonable accommodation for an employee whose sincerely held religious beliefs prevent them from receiving a COVID-19 vaccine, unless—once again—doing so would pose an undue hardship. Because the definition of religion is broad, the EEOC guidance suggests that employers should ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief. Similar to the analysis above regarding disabled employees, an employer may exclude a religious objector from the worksite, but must first determine whether any reasonable accommodation could allow the employee to continue working.
Additionally, the EEOC states in its updated guidance that the vaccine itself is not a “medical examination” under the ADA, which places limits on an employer’s ability to require medical testing. However, pre-screening vaccination questions—which may elicit information about a disability—could potentially implicate the ADA’s provision on disability-related inquiries. If an employer is administering the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.” Alternatively, an employer could require that employees receive a vaccination from a third party, like a pharmacy or health care provider. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.
Employers should consider the pros and cons of a mandatory COVID-19 vaccination policy. While it might reduce instances of infection, employers need to be prepared from an administrative perspective to consider and determine its response with respect to any employees’ objections. For these reasons, some employers may prefer an education campaign that strongly encourages employees to get vaccinated rather than making vaccination a requirement.
Given the uncertainty of how the EEOC and courts will rule on a challenge in a particular case to an employer’s vaccination requirement, employers should consult with employment counsel before instituting a mandatory policy.
The WilmerHale employment team will continue to follow these developments and is available to provide more specific guidance to employers considering implementing a COVID-19 vaccine policy.
