EEOC Updated Guidance – Should Employers Mandate the COVID-19 Vaccine?

January 22, 2021

Now that the COVID-19 vaccine is being distributed throughout the U.S. and becoming more widely available, employers are faced with making a decision as to whether to mandate the vaccine for their employees. According to the U.S. Equal Employment Opportunity Commission’s (EEOC) guidance released on December 16, 2020, it is entirely possible for an employer to mandate the vaccine. Even so, there are overlapping federal laws that employers need to consider if they choose to mandate vaccination. Title VII affords protection based on race, color, sex, religion, or national origin, and the Americans with Disabilities Act (ADA) prohibits discrimination based on disability. In addition to the protections found under Title VII, the EEOC also regulates violations under Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). These federal regulations afford employees protections against discrimination in the workplace and may easily be implicated when an employer requires employees to obtain the vaccine.

In this context, particular attention should be given to pre-vaccination screening, proof of vaccination, and refusals to receive the vaccine when it involves employees with ADA-protected disabilities, Title VII – protected religious observances, and GINA -protected genetic information. To address these issues, on December 29, 2020, the EEOC released various questions and answers to help alleviate confusion on what an employer may, or may not, require of their employees.

Pre-Vaccination Screening

In the case that an employer is administering the vaccine themselves, or through a contractor on their behalf, pre-vaccination medical screening questions are likely to reveal information concerning an employee’s disability. When asked by an employer, these questions can be considered “disability-related” in violation of the ADA. To stay in line with federal regulations, an employer must show that pre-vaccination screening inquiries are “job-related and consistent with business necessity.”  In order to meet this standard, an employer needs to show a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a threat to the health or safety of themselves or others.

Alternatively, there are two circumstances in which the employer is not required to make this showing. First, if an employer offers a COVID-19 vaccination to employees on a voluntary basis, the employee’s decision to answer pre-screening, disability-related questions also must be voluntary and thus the employee’s voluntary answers to pre-screening questions does not invoke the ADA. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions. Second, if an employer requires its employees to get vaccinated by an independent third party, such as a pharmacy or other health care provider, the ADA’s restrictions on disability-related inquiries would not apply to the pre-vaccination screening questions.

In addition to ADA implications, pre-vaccination inquiries may also trigger the Genetic Information Nondiscrimination Act (GINA). GINA prohibits an employer, or health care provider working for the employer, from asking questions about an employee’s genetic information. To ensure compliance, during pre-vaccination screening inquires, an employer should ensure that the questions will not reveal genetic information about the employee.

Asking for Proof of Vaccination

GINA may also be implicated if an employer chooses to require its employees to get vaccinated through a health care provider. In this case, the employer should warn its employees not to provide any genetic information as part of their proof of vaccination when provided to the employer. If the employer provides this warning, and genetic information is inadvertently disclosed by the employee, it is not considered a violation under the GINA.

Further, an employer will avoid any ADA violations when requesting for proof of vaccination from employees, if the employer simply requests proof of receipt of a COVID-19 vaccination. A request for proof of vaccination is not likely to elicit information about a disability, and thus, would not constitute as a disability-related inquiry. But if an employer continues to press an employee as to why the employee did not receive the vaccination, this could possibly reveal information about a disability in violation of the ADA. As with GINA, if an employer requests the vaccination be administered through a pharmacy, or other health care provider, the employer must warn employees not to provide additional medical information with proof of vaccination.

Refusal to Vaccinate

While directing employees to obtain the COVID-19 vaccine is ultimately to protect others in the workplace, such a requirement could have the effect of screening out an employee with a disability who cannot receive the vaccine. Nonetheless, the ADA gives an employer the ability to set standards to prevent a “direct threat” to the health or safety of other individuals in the workplace. If a workplace COVID-19 vaccination standard screens out an individual with a disability, the employer must show that the unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” An employer must then conduct an intensive “individualized assessment” to ascertain the risk posed by the individual. The assessment will include factors such as the duration, nature and severity, likelihood, and imminence of the risk. If the results of the assessment show that the unvaccinated individual poses a direct threat to others, the employer may exclude the employee from the workplace. That being said, the employer still must try and accommodate the employee before terminating their employment (i.e., telework, job reassignment, or leave of absence).

Similar to disability, Title VII also provides protection for religious beliefs, practice, or observance, which safeguards employees refusing to vaccinate for religious reasons. In the event an employee refuses to vaccinate due to religious beliefs, the employer must provide reasonable accommodations for that religious belief, practice, or observance unless it would pose more than a minor cost or burden on the employer. Unlike disability-related inquires, if an employer has an objective belief for questioning either the religious nature or the sincerity of the belief, practice, or observance, the employer may request additional information from the employee.

Potential Drawbacks to Mandating Vaccination

Ultimately, an employee’s refusal to vaccinate does not permit an employer to automatically terminate employment. If the employee’s refusal is related to an ADA-covered disability, or a religious practice protected by Title VII, the employee is entitled to accommodations in the workplace. If such accommodations are not available, the employee may be entitled to take leave under local, state, or federal law, or the employer’s leave policies.

The obvious benefits to mandating the COVID-19 vaccine include further protection for the health and safety of other employees, as well as a potentially vital tool in stopping the pandemic. Even so, there are some potential drawbacks to requiring the vaccine. The first, and most obvious, drawback are employee objections. Whether these objections are based on political beliefs, a disability, religious beliefs, or pregnancy, an employer should do their best to accommodate. As mentioned previously, there are several federal protections consider, including the National Labor Relations Act (NLRA.) Employers need to be conscious not to violate the NLRA Act by prohibiting employees or retaliating against employees for participating in controversial and protected discussions with other employees regarding their position on requiring the vaccine.

There are also additional concerns for multistate employers. Expanding business across state lines can open an employer to various differing legalities and requirements in each state. Differences in the law do not stop at the state level. Employers will also need to consider the conflicts between their state and local laws because although at the state level, an employer may mandate  vaccination, there could be local laws that prohibit such a policy.

The last potential drawback, and one of the most important to employers, is the cost of mandating the vaccine. If any employer requires employees to get vaccinated, the employer must also be prepared to pay for the costs of vaccination, including time off work to get vaccinated. This includes the additional cost of consistently enforcing the employer’s vaccination policy. Not only will supervision be time consuming, it can bring consequential costs of monitoring, verifying, and enforcing the policy equitably.

Employers should proceed with caution because not only may employees have adverse reactions to an employer mandating the vaccine, but according to recent news, there are potential adverse reactions to the vaccine itself.  Rare reactions to the Moderna vaccine, only 3 cases out of 30,000, have been reported to affect some individuals with dermal filler, (no reactions to the Pfizer vaccine have been reported). Because the reactions to the Moderna vaccine are so rare, minor, and easily treatable, there has been little controversy but if future reactions are detected, it could be another potential concern for employers.

Employer Solutions

If employers feel strongly about introducing the COVID-19 vaccine in the workplace, anticipated pushback from employees can be fixed with simple solutions.  For example, an employer can make the vaccine policy voluntary. By making the vaccine policy voluntary, this will help keep the employees’ personal autonomy intact and employers can still strongly encourage vaccination. To encourage resistant employees, an employer can hold an informative session to educate employees on the safety and efficiency of the vaccine. This will provide employees with a higher comfort level and allow employees an opportunity to questions and obtain more information regarding the employer’s policy. This new era of health and safety in the workplace can be tricky, and it is important to consult with experienced employment counsel before making any employment decisions.

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ByrdAdatto attorney Jay Reyero

Jay D. Reyero

Jay has mastered the art of communication, leaving clients with both an understanding of their business risk and the path to solution.