EEOC Issues Guidance on Legally Compliant COVID-19 Vaccinations Programs

B y C h r i s t o p h e r T . V r o u n t a s , E s q . a n d A l l i s o n C . A y e r , E s q u i r e , V r o u n t a s ,A y e r & C h a n d l e r , P . C .

On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) once again updated its guidance concerning COVID-19, this time to address vaccinations. Just as with past guidance, the new information regarding vaccinations comes in the form of questions and answers that show up in the last section of the EEOC’s COVID-19 technical assistance publication. These are some of the highlights:

The EEOC has taken the position that the ADA, GINA, and Title VII do not prohibit employers from requiring their workforces to be vaccinated against COVID. In other words, employers are generally permitted to require employees to get the COVID vaccine and/or to ask their employees for proof of a COVID-19 vaccine without running afoul of EEO law. But that does not mean all required vaccination program comply with EEOC laws.

In short, there is no easy bright line rules for COVID vaccine protocols. Employers can lawfully implement COVID vaccine requirements. But they should avoid automatically firing an employee or excluding him/her from a worksite only on the basis that the employee has not obtained the vaccine. The EEOC has now made clear that even in the context of the coronavirus pandemic, employers must make efforts to ensure they attempt to accommodate employees who have cannot be vaccinated for legally protected reasons, such as disabilities and/or religious belief.

Here are some considerations for employers set forth in the EEOC guidance to help employers evaluate how to lawfully require their employees to be vaccinated for COVID.

Requiring employees to take a vaccine and/or asking for proof of vaccination is permissible. But, an employer cannot ask additional questions about why the employee did or did not receive the vaccination unless the questions are jobrelated and consistent with business necessity. Best practice is to avoid asking questions concerning vaccinations and/or have independent third parties like pharmacies or health care providers administer the vaccines. Otherwise, if the employer administers a vaccination program, screening or other questions must be job-related and consistent with business necessity in order to be lawful under the ADA. ·

If an employer requires proof of COVID vaccination, it should warn employees in advance not to provide other medical information with the proof of vaccination, i.e., leave out information about screening answers, diagnosis, medical condition(s), prescription information, etc.

An employer cannot automatically fire or restrict from the workplace an employee who does not get the COVID vaccine because of a disability or sincerely-held religious belief. Instead, the employer must conduct additional analysis before deciding how best to handle an employee who has not complied with the employer’s COVID-19 vaccine requirements. Specifically: If an employee who cannot get vaccinated because of a disability, before restricting him/her from the job site, the employer must assess if the employee poses a direct threat (i.e., significant risk of substantial harm) to the health or safety of him/herself or others. In the context of COVID, this requires the employer to determine, among other things, that the employee will expose others to the virus.

If an employee cannot get vaccinated for COVID because of a disability or a sincerely-held religious belief, the employer must assess whether there exists a reasonable accommodation for the disability/religious belief to permit the employee to do his/her job without causing undue hardship (significant difficulty or expense) to the employer.

Employers are advised to consult CDC recommendations, OSHA guidance, and Job Accommodation Network and other COVID resources when assessing whether there exists an effective accommodation to the vaccination requirement that would not pose an undue hardship.

Before terminating an employee for not being vaccinated, there must be an assessment of the existence of a direct threat/reasonable accommodation assessment distinct from the one done to determine if the employer can be excluding from the workplace.

According to the EEOC, if an employee cannot get the COVID vaccine because of a disability or religious belief, and there is no reasonable accommodation to reduce a direct threat to other employees, then it likely would be lawful to exclude the employee from the workplace. BUT this does not necessarily mean the employee can be fired.

Working remotely or taking leave under the Families First Coronavirus Response Act, the FMLA and/or the employer’s policies may be reasonable accommodations for a person who cannot get vaccinated because of a disability or religious belief.

Remember, employees are not lawyers and they need not refer to any law, use legal terms or otherwise use any magic words to trigger the employer’s duty to accommodate a disability or religious belief, even in the context of vaccine requirements.

Managers and supervisors should betrained to recognize when statementsby employees may constitute requestsfor accommodations to a vaccinationrequirement.

Employers and employees should be flexible and cooperative to try to identify whether a reasonable accommodation exists to exempt the employee from vaccination requirement.

As always, employers must maintain the privacy and confidentiality of any medical information the employee obtains during the course of a vaccination program. Employers cannot retaliate against employees who asks for or receives an accommodation to a vaccination requirement.