On December 16, 2020, the EEOC updated its COVID-19 guidance to include guidelines pertaining to mandatory vaccinations in the workplace. The EEOC stated that the administration of the COVID-19 vaccination is not a “medical examination” under the ADA, and thus private employers may require employees to be vaccinated as a condition to continued employment, or, at the very least, as a condition to returning to the workplace.

Employers who decide to implement a mandatory vaccination policy must allow for employees with certain medical conditions or sincerely held religious beliefs to request an exemption by seeking reasonable accommodation to the extent required under applicable law. In its recent guidance, the EEOC discusses how an employer should evaluate whether to accommodate an employee who cannot or will not receive a vaccination. In pertinent part, the EEOC recommends that employers take the following steps,

• Conduct an individualized assessment to determine whether that individual poses a significant threat to others using the following four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
• If it is determined that the individual who cannot be vaccinated poses a direct threat to the worksite, the employer must assess whether a reasonable accommodation (absent undue hardship) would eliminate or reduce this risk prior to excluding that employee from the workplace. Employers should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship. Employers should consider the nature of the workforce, the employee’s position, and his/her contact with others to make this determination.
• If the employee refuses to get a vaccine based on a disability or sincerely held religious belief and no reasonable accommodation is possible, the EEOC’s guidance permits an employer to legally exclude that employee from the workplace. However, the decision of whether to terminate this employee should be a fact-specific inquiry that is exercised cautiously. Employers may be obligated to offer the option to work remotely or to offer leave under applicable laws or the employer’s existing leave policy.

According to the new guidance, employers who provide vaccinations to employees should exercise caution in avoiding pre-screening questions that seek the disclosure of genetic information or disabilities so as not to run afoul of the ADA or Title II of the Genetic Information Nondiscrimination Act. If employers are not providing the vaccination themselves and instead requiring proof of vaccination, they should warn employees not to provide medical or genetic information as part of the proof.

In summary, implementing a policy that mandates a COVID-19 vaccination is ridden with legal landmines. Employers who implement these policies should be prepared to engage in the interactive process with any employees who request an accommodation or seek exemption from vaccination based on medical or religious reasons. For employees who do receive the vaccination, employers must be cautious not to ask any unnecessary pre-screening questions that might violate federal laws and must have a procedure in place to ensure that any medical information received from employees is kept confidential. It is recommended that you consult with Stokes Wagner to determine whether a mandatory vaccination policy is appropriate for your business.

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THIS DOCUMENT PROVIDES A GENERAL SUMMARY AND IS FOR INFORMATIONAL/EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED TO BE COMPREHENSIVE, NOR DOES IT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT WITH COUNSEL BEFORE TAKING OR REFRAINING FROM TAKING ANY ACTION.