The Equal Employment Opportunity Commission (EEOC) has just issued its initial guidance on COVID vaccinations in the workplace, including whether an employer can mandate vaccine usage.
The EEOC clarified that requiring a vaccine is not a “medical examination” as that term is used under the American with Disabilities Act (ADA), even if it is administered by an employer. However, employer policies concerning COVID vaccinations still must comply with other aspects of the ADA, which applies to employers with 15 or more employees.
Direct threat analysis
At present, the one circumstance described by the EEOC as a permissible basis to mandate vaccination under the ADA is when a worker poses a “direct threat” to themselves or others by their physical presence in the workplace without being immunized. Vaccines can be required if workers would pose a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Thus, if an employee is capable of fully performing their current job duties remotely without the potential spread of the virus to co-workers or work-related third parties, this may be an exception to mandatory vaccinations, according to the EEOC.
Pre-screening questions under the ADA
Under the ADA, pre-screening questions that would likely be asked of an employee who was about to receive the vaccine would be considered disability-related inquiries that need to be job-related and consistent with business necessity. If the employer is either asking the questions of employees directly or contracting with a third-party to ask those questions and administer the vaccine, the employer must demonstrate that the questions are necessary to give the vaccine and that the vaccine is necessary to ensuring that the employee does not create a direct threat to the health and safety of themselves or others. All medical information must be maintained by an employer as confidential and separate from a main personnel file.
However, the EEOC notes that if the employer is requiring the vaccine but employees are getting it at a pharmacy or other third-party not under contract by the employer, the requirement of establishing that the pre-vaccination questions are job-related and consistent with business necessity does not apply.
Vaccines and ADA reasonable accommodation
Importantly, if an employer requires a COVID vaccine, the EEOC reinforces that additional legal steps are to be followed if an individual cannot be vaccinated because of a disability. Then, an employer needs to determine whether it can provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the safety risk. Such disabled individuals cannot be automatically excluded from the workplace or be subject to adverse job actions. The new EEOC guidelines indicate that employers are to engage in a flexible, interactive process with any employee requesting an accommodation to identify options that do not constitute an undue hardship (significant difficulty or expense).
Requiring proof of vaccination
The EEOC guides employers that they can request proof that employees received a COVID-19 vaccine. The EEOC recommended that employers should counsel employees to not provide any additional medical information along with this proof.
For further guidance on EEOC regulations concerning COVID-19 and today's workplace, contact one of our employment law attorneys at Summers Compton Wells LLC.