EEOC Guidance on Employer Vaccination Requirements

This is a guest blog post by Greater Mankato Growth member, Blethen Berens.

As COVID-19 vaccinations begin to take place in the United States, discussions are emerging about potential vaccination mandates from employers. In light of these discussions and questions, the U.S. Equal Employment Opportunity Commission (EEOC) has released guidance for employers on vaccination mandates and the interplay with various workplace anti-discrimination laws, such as the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act.

The EEOC guidance on vaccinations indicates that employers can require that their employees be vaccinated against COVID-19, subject to certain federal and state anti-discrimination laws. Such vaccinations could be required and administered by the employer, required by the employer but administered by a third party (e.g. pharmacy or health care provider), or offered by an employer on a voluntary basis.

The process of deciding whether or not to establish a mandatory vaccination policy should involve consideration of anti-discrimination laws, non-legal business and practical considerations, and if a policy is established, clear communication with employees is critical.

Americans with Disabilities Act (ADA)

For purposes of the ADA, the administration of an FDA-approved vaccination is not considered a medical examination. However, pre-vaccination screening questions may involve disability-related inquiries, thereby implicating the ADA. If an employer administers the vaccine, it must show that the pre-vaccination screening questions it asks employees are “job-related and consistent with business necessity.” If an employee receives an employer-required vaccination from a third party (e.g. a pharmacy or health care provider), the pre-vaccination medical screening questions would not need to meet the “job-related and consistent with business necessity” standard. If an employer offers a vaccination to employees on a voluntary basis, the ADA requires that the employee’s decision to answer pre-vaccination screening questions must also be voluntary, and while refusal to answer those questions can be grounds for declining to administer a vaccine, an employer may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions. If an employer determines that an employee who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace or take any other action unless there is no way to provide reasonable accommodation (without undue hardship) that would eliminate or mitigate the risk and/or threat.

Title VII of Civil Rights Act

If an employer requires vaccinations when they are available and an employee indicates that s/he is unable to receive a vaccination because of a sincerely held religious belief, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil rights Act. Employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held belief, but if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

It is important to note that the decision about whether or not to require vaccinations involves more than just legal considerations, and it is not a decision that should be made hastily or without due consideration of organizational culture, strategic management, and the health and well-being of your employees. Additionally, it is unclear when non-essential workers will have access to a vaccine and how the logistics of vaccine distribution will unfold when they are available. These uncertainties should also be considered when evaluating whether a vaccination policy is appropriate. Should you choose to implement a vaccination policy, it is critical that you understand the various anti-discrimination laws and accompanying processes and procedures.

As with all aspects of the pandemic, guidance from federal, state, and local health officials is likely to change and evolve, and employers should therefore continue to follow current and up-to-date information on workplace safety. If you have questions about mandatory vaccination considerations, anti-discrimination laws, COVID-19-related legislation and its impact on your business, or any other employment law issue, please contact one of our employment law attorneys, Julia Ketcham Corbett, beth serrill, o Alyssa Nelson.

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