The short answer to the big question of whether an employer can require employees to get vaccinated is: Yes. But that is only the beginning of the analysis.

The U.S. Equal Employment Opportunity Commission (EEOC) issued initial guidance in December 2020 for employers considering mandatory vaccinations for COVID-19. With its updated guidance issued on May 28, 2021, the EEOC shed much-needed light on whether employers may mandate COVID vaccinations, and some things to watch out for if vaccines are required.

To ensure that vaccination requirements do not run afoul of federal civil rights laws – including the Americans with Disability Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and the religious protections of Title VII of the Civil Rights Act of 1964 (Title VII) – employers should consider two questions when formulating vaccination policies:

• What information can the employer seek from workers?
• Can the employer reasonably accommodate a worker who fails to get vaccinated because of a disability, sincerely held religious belief or pregnancy?

Questions about an employee’s ability to receive a COVID-19 vaccine and proof of vaccination are loaded with legal pitfalls. Pre-screening vaccination questions may lead to the disclosure of “disability-related” information under the ADA. Therefore, any pre-screening questions must be “job-related and consistent with business necessity.” To meet this standard, employers must have a reasonable belief, based on objective evidence, that an employee who fails to answer the questions, and therefore fails to receive a vaccine, will pose a direct threat to the health and safety of themselves or others.

The EEOC suggests two circumstances in which employers can ask disability-related screening questions without meeting this requirement.

First, if vaccinations are voluntary, the employee’s decision to answer pre-screening, disability-related questions must also be voluntary. 42 U.S.C. 12112(d)(4)(B); 29 C.F.R. 1630.14 (d). If an employee fails to answer the questions, the employer may decline to administer the vaccine, but may not retaliate against, intimidate or threaten the employee for refusing to answer any questions. If a third party, without a contract with the employer (i.e., pharmacy or other health care provider), administers an employer-required vaccination, this requirement does not apply to pre-vaccination medical screening questions.

Second, asking for proof of receipt of a COVID-19 vaccination is not a disability-related inquiry, but subsequent follow-up questions may violate federal civil rights laws. For example, an employer that asks a worker why s/he did not receive a vaccination may elicit information about that person’s disability or other medical information. Instead, the employer should advise workers not to provide any medical information along with their proof of vaccination.

In sum, for mandatory vaccination programs, all inquiries should be job-related and consistent with business necessity, and requests for proof of vaccination must be limited so that peripheral medical information is not disclosed. If the vaccination program is voluntary, the employer should still limit its inquiries, and should further ensure that employees understand that responding to the inquiries is voluntary.

Relatedly, vaccination incentive programs are not prohibited by federal EEO laws, so long as the incentive is not coercive. In its May 2021 guidance, the EEOC warns that “Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information.”

Accommodating Disabilities and Sincerely Held Religious Beliefs

Under the ADA, employers may institute vaccination requirements, but the usual standards for engaging in the interactive process and implementing reasonable accommodations still applies. For example, where a vaccination standard screens out or tends to screen out individuals with a disability, the employer must show that the unvaccinated employee would pose a direct threat to others in the workplace that cannot be eliminated or reduced by reasonable accommodation.

To determine whether a direct threat exists, the EEOC requires a four-factor analysis that considers:

• the duration of the risk
• the nature and severity of the potential harm
• the likelihood that potential harm would occur
• the imminence of the potential harm

If the direct threat cannot be reduced to an acceptable level, the employer may exclude the employee from physically entering the workplace, but not automatically terminate the worker.

Similarly, once an employer is on notice that an employee’s sincerely held religious belief, practice or observance prevents them from receiving the vaccination, the employer may not simply exclude or terminate the worker. Instead, the employer must provide a reasonable accommodation unless it would pose an undue hardship under Title VII. An employer should generally assume that an employee’s request for religious accommodation is based on sincerely held belief. However, if the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer would be justified in requesting additional supporting information.

Good Faith Interactive Process

When an employee is unable to receive the vaccination due to a disability or their religion, the employer must engage in a good faith interactive process to identify a reasonable accommodation that does not constitute undue hardship. This process should include a direct and open dialogue with the employee to determine possible options for accommodation given the nature of the workforce, the workspace itself, and the employee’s position.

The employer should also consider the prevalence of employees who have already received a COVID-19 vaccination and the amount of contact employees may have with others whose vaccination status is unknown. Accommodations may include allowing employees to work from home, modifications to the employee’s workspace, changes to the employee’s schedule to reduce contact with others, or another alternative that may allow the employee to work away from the worksite. This is not an exhaustive list and creativity may be needed to find a solution.

In circumstances where a reasonable accommodation is not possible, it is lawful for the employer to exclude the employee from the workplace. However, employers must be mindful that some individuals or demographic groups may face greater barriers in obtaining COVID-19 vaccinations than others. As a result, a mandatory vaccination program may inadvertently create a negative impact on those individuals or demographic groups. Regardless, employers should document each step of the interactive process to ensure there is a comprehensive record of the employer’s efforts to accommodate the employee.

Conclusion

The rules and laws surrounding vaccinations are constantly changing. We expect both federal and local government agencies to continue to update their guidance as circumstances develop. Employers should take care in adopting vaccination policies and ensure that such policies remain up to date.

Fox Rothschild would like to thank Adam Truong for his contribution to this alert.

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