EEOC Issues Guidance on COVID-19 Vaccination

Legal Alert

December 22, 2020

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With the approval of COVID-19 vaccinations under Emergency Use Authorization, employers should review their policies and procedures to be ready when the vaccine is readily available to the general public. Recently, the EEOC issued additional COVID-19 guidance covering COVID-19 vaccinations. The EEOC’s guidance details mandatory vaccination policies and accommodation requests, and employer administered vaccines.

The big question many employers (and their employees) have already been asking is, “Can an employer require its employees to get vaccinated against COVID-19?”. According to the EEOC, the answer is yes, but with some important caveats and exceptions. Generally, employers may require that employees be vaccinated once the vaccines are widely available and may require proof of vaccination. However, vaccination policies must permit accommodations for disabilities and sincerely held religious beliefs under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and Title VII of the Civil Rights Act of 1964 (“Title VII”). When evaluating accommodation requests, employers may request the following from employees:

In the case of a disability accommodation, a health care provider certification regarding the employee’s disability and the difficulty or issue that the vaccination would cause.
In the case of a religious accommodation, limited information intended to ascertain whether the reason for seeking an accommodation is based on religious beliefs or a personal preference. Specifically, an employer may ask the employee to provide some basic information that identifies what it is about the employee’s religious beliefs that conflicts with the vaccination.

According to the EEOC, if an employer cannot accommodate an employee and the lack of vaccination results in “a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.” If this threat occurs, employers must review whether any other laws or regulations might apply. Any employer policy requiring proof of vaccination should explicitly advise employees not to provide any medical information when submitting proof of vaccination to avoid implicating the ADA.

When drafting mandatory vaccination policies, an employer must assess how necessary the vaccination is for its business. Moreover, employers must analyze the implications of any collective bargaining agreement or employment contract in creating such a policy. In determining whether to require the COVID-19 vaccine, employers must determine what works best for their company in order to achieve a safe working environment.

It is important to note that as the pandemic progresses, it is likely that the CDC and EEOC will issue additional guidance for employers. Employers must continue to identify the implications of the ADA, the Rehabilitation Act, and Title VII and to develop thorough policies and guidelines that they plan on implementing when a vaccination is generally available. If an employer plans on administering the vaccine to its employees or contracting with a third-party vendor to vaccinate employees, the employer should contact its Labor and Employment counsel to ensure compliance with various federal and state laws.

If you have any questions regarding the issues raised in this client alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.