EEOC Provides Employers With Answers On COVID Vaccines

Author: Michael Cardman, XpertHR Legal Editor

December 17, 2020

New guidance from the Equal Employment Opportunity Commission (EEOC) could help employers determine whether they can require their employees to get vaccinated against the coronavirus (COVID-19) without violating federal discrimination laws.

A December 16 update to the agency's coronavirus technical assistance states that administering a federally authorized coronavirus vaccine (such as the new Pfizer vaccine) is not a "medical examination" for purposes of the Americans with Disabilities Act (ADA).

This is significant because the ADA prohibits employers from conducting mandatory medical exams of employees unless they are "job related and consistent with business necessity." As a result, employers generally may require that employees get vaccinated, as long as the vaccination is job-related and consistent with business necessity.

Other highlights from the EEOC's updated guidance include the following:

  • Screening Questions: Disability-related screening questions may be asked without needing to satisfy the "job-related and consistent with business necessity" requirement if:
    • The employer has offered a vaccination to employees on a voluntary basis; or
    • An employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider.
  • Proof of Vaccination: Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and therefore is not a disability-related inquiry.
  • Employees Who Cannot Get Vaccinated Due to a Disability: If a vaccination requirement screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to 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" before excluding the employee from the workplace.
  • Employees Who Decline to Get Vaccinated Due to a Religious Beliefs: Employers must provide a reasonable accommodation to employees who decline to get vaccinated due to a sincerely held religious belief, practice or observance - unless doing so would pose an undue hardship under Title VII of the Civil Rights Act, which has been defined as more than a de minimis cost or burden on the employer. If no reasonable accommodation is possible, the employer may exclude the employee from the workplace, but not necessarily terminate them.