On Wednesday, December 16, the U.S. Equal Employment Opportunity Commission (EEOC) updated its continuing Covid-19 guidance for employers by adding a new section on Vaccinations (see Section K). Section K of the guidance advises employers on the following topics:
- The ADA and Vaccinations (Sections K.1-K.3);
- ADA and Title VII Issues Regarding Mandatory Vaccinations (Sections K.4-K.7); and
- Title II of the Genetic Information Nondiscrimination Act (GINA) and Vaccinations (Sections K.8-K.9).
Can Employers Mandate that Employees Receive the Vaccine?
The EEOC says yes – subject to legally protected exceptions for certain employees under the ADA, Title VII, and GINA. Asking an employee for proof of vaccination is not a disability-related inquiry under the ADA, but employers should avoid seeking medical or disability-related information in any follow up questioning, such as asking why an employee was not vaccinated (see K.3). An employee may request to be exempt from an employer’s vaccination requirement for disability-related or religious reasons under the ADA and Title VII. An employer faced with such a request should review sections K.5-K.7 for guidance on responding to these requests. For example, if an employer cannot exempt or provide reasonable accommodation to an employee that cannot comply with the employer’s vaccination requirement, and the employer determines that having an unvaccinated employee poses a “direct threat” to the health or safety of individuals in the workplace, the employer may exclude the employee from the workplace but cannot automatically terminate the employee, because the employee may have other rights such as under the Families First Coronavirus Response Act and the FMLA.
Employers considering a vaccination requirement should review the guidelines carefully and be prepared to recognize and address any employee accommodation requests (see K.5).
Can Employers Provide the Vaccine to Employees?
Employers considering providing the vaccine at the workplace, whether through a third party or otherwise, should review Section K.2 and K.8 carefully. The EEOC notes that vaccination pre-screening questions are likely to elicit information about disability, which implicates both the ADA and GINA (GINA if the questions elicit genetic information). However, if an employer provides the vaccine but makes it voluntary to employees, then the pre-screening questions are also voluntary to employees, which would not run afoul of the ADA provided the employer complies with its confidentiality provisions and no adverse actions are taken against employees opting out of the vaccine.
The new guidance is helpful for employers considering a vaccination requirement for employees as the vaccine becomes more widely available. Employers will want to plan ahead and clearly communicate their vaccination policy to employees, including how employees may request an exception for disability-related, religious, or other reasons.
Please contact any of the attorneys in Devine Millimet’s Labor & Employment Practice Group with questions regarding COVID-19 compliance matters.
Thank you to Lynnette V. Macomber, Esq. at NHADA Silver partner Devine, Millimet & Branch, P.A. for the creation of this article. Devine Millimet provides clients with in-depth counsel on employment law, employee benefits and workers’ compensation issues in litigation, corporate, finance, and government matters.