The Equal Employment Opportunity Commission (EEOC) recently confirmed that employers (including health care employers) can require employees to receive the COVID-19 vaccination as a condition of employment. Employers may also require proof of vaccination, subject to certain limitations, as the vaccine becomes widely available.

Such limitations include providing reasonable accommodations (including telework and leaves of absence) to employees with disabilities that prevent them from getting the vaccine under the Americans with Disabilities Act (ADA). Employers must also provide reasonable accommodations to employees who are unable to receive the vaccine because of a sincerely held religious belief, practice or observance, unless the accommodation poses undue hardship on the employer under Title VII. Similar to the ADA, if the employer cannot provide a reasonable accommodation, the employer may exclude the employee from the workplace by again considering alternative accommodations.

While the employer is allowed to request proof of receipt of the vaccine, subsequent questions, such as asking an employee why they did not receive the vaccine, may elicit information about a disability and should generally be avoided. Such an inquiry would only be allowed if it is considered job-related and consistent with business necessity.

According to the EEOC guidance, administering a COVID-19 vaccine to employees or requiring proof of having received a vaccine does not, by itself, implicate the Genetic Information Nondiscrimination Act (GINA). However, employers should limit such questions posed by a human resource professional that elicit genetic information or disabilities, including such information which is kept in human resource medical files, as those could violate GINA and the ADA.

Human resource departments should only require documentation that a vaccination had been administered to the employee, or documentation that the employee’s provider had advised the employee against receiving the vaccine but without providing details as to the basis for the advice. Of course, any disclosure of GINA or disability related information sought by or shared with the employer’s provider during the course of treatment before or during the vaccine administration, or securely maintained in the employee’s medical records, would not violate GINA or the ADA.

In summary, COVID-19 vaccines are beginning to be available to many employers and employees. While the EEOC provides that employers can require vaccination as a condition of employment, employers still need to be aware of limitations posed by the ADA, Title VII and GINA. Employers should begin developing and finalizing plans for whether or not they want to mandate the vaccine, and if so, how they will administer such a program to ensure compliance with all applicable laws.

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