COVID-19 Vaccinations Are Here – But Can Employers Require Them?

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Helena I. Poch Ciechanowski

December 18, 2020

Following the FDA’s recent Emergency Use Authorization for COVID-19 vaccination in the United States, the Equal Employment Opportunity Commission (EEOC) updated its pandemic-related guidance on the impact of various anti-discrimination laws, including Title VII, the Americans with Disabilities Act (ADA), the Rehabilitation Act, the Genetic Information Nondiscrimination Act, and the Pregnancy Discrimination Act.  Specifically, the new EEOC guidance addresses whether employers can administer employee vaccination drives, institute mandatory vaccination policies, and/or take adverse actions against employees who refuse to be vaccinated.

In sum, the EEOC clarified that employers can institute a mandatory vaccination policy, but need to explore accommodations for employees who cannot be vaccinated because of a disability or who refuse to do so for religious reasons.  If the unvaccinated employee presents a “direct threat” to the health and safety of the employee or others, the employee may be barred from the workplace, but the employer may need to permit the employee to work remotely.

Challenges exist for employers wishing to require COVID-19 vaccination and to provide the vaccine directly to employees, including employers who retain a third party health care provider to administer the vaccination.  Although the EEOC clarified that vaccine administration does not constitute a “medical examination” for purposes of the ADA, pre-screening questions (which are those questions designed to identify individuals who cannot safely receive the vaccine) may impermissibly elicit information about an employee’s disability or genetic information (such as family history).  When the employer (or the employer’s contractor) administers the vaccine, pre-screening questions are limited to those that are “job-related and consistent with business necessity.”  These limitations do not apply in the case of a voluntary vaccination drive, or where the health care provider administering the vaccine has no affiliation with the employer.

Key Employer Take-Aways from the New Guidance

• Employers can require proof of COVID-19 vaccination before employees re-enter the workplace.
• When requesting proof of vaccination, warn employees not to provide family history or other genetic information.
• Use caution before administering vaccinations on-site or contracting to provide vaccinations to employees.
• Voluntary vaccination policies provide more freedom for employer involvement in the vaccination process.
• Recognize if an employee’s refusal is due to a disability or a sincerely held religious practice or belief, and evaluate whether exemption or accommodations are possible.
• Where possible, remote work is a reasonable accommodation.