Last week, the Equal Employment Opportunity Commission (“EEOC”) issued guidance clarifying that, in certain circumstances, employers will have the ability to require that employees receive the COVID-19 vaccine (the “Guidance”).  As the vaccine becomes more publicly available in the coming months, employers must consider both the legal and practical implications of adopting a mandatory vaccination policy.  As a result of these implications discussed below, many employers may also consider whether encouraging employees be vaccinated (instead of mandating vaccination) is a better option.

Legal Considerations

As an initial matter, the Guidance does not explicitly state that mandatory vaccination policies are legal.  Instead, by setting forth a series of questions and answers based upon an employer enacting such a policy, the EEOC indirectly affirms that an employer is legally permitted to require the vaccination of its employees without violating any applicable federal anti-discrimination laws, subject to certain circumstances.  Indeed, mandatory vaccination policies implicate various federal anti-discrimination laws, including the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and the religious protections of Title VII of the Civil Rights Act of 1964 (“Title VII”).  Such policies also trigger various employee protections under state and local law, which must be analyzed on a jurisdictional basis.

Overall, the Guidance suggests that an employer may require its employees to get vaccinated as a condition of returning to the workplace, as long as certain conditions are met.  Specifically, before excluding an employee from the workplace, “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.’”  The EEOC advises employers to “conduct an individualized assessment” of the following four (4) factors in determining whether a “direct threat” exists:

• The duration of the risk;
• The nature and severity of the potential harm;
• The likelihood that the potential harm will occur; and
• The imminence of the potential harm.

To find that an unvaccinated employee would pose a “direct threat” requires the employer to determine that “an unvaccinated individual will expose others to the virus at the worksite.”  As noted above, there must be no other reasonable accommodation available to the unvaccinated employee before an employer is permitted to exclude the employee from the workplace (or take any other adverse action).  Therefore, if an employee can perform their job duties remotely, the Guidance suggests that an employer cannot require this employee get vaccinated.

Required Exceptions to the Vaccination Requirement

In addition to the parameters described above, the Guidance makes clear that any employer that adopts a mandatory vaccination policy must make certain exceptions to the policy based upon an employee’s (1) disability status and (2) sincerely held religious belief.

Disability Accommodations

For an employee who cannot be vaccinated due to a disability, an employer must provide a reasonable accommodation (absent an undue hardship) that would eliminate or reduce the safety risk posed by the unvaccinated employee in the workplace.  An undue hardship is defined as a “significant difficulty or expense” under the ADA.

The EEOC indicates that the employer must engage in an interactive process with the disabled employee to identify accommodation options.  According to the Guidance, this “process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.”  In connection with this analysis, employers should consider the prevalence of vaccinated employees in the workplace and the amount of contact the unvaccinated employee has with others whose vaccination status is unknown (i.e., customers, clients, or vendors).

The EEOC recommends that supervisors who are responsible for engaging in interactive dialogue with employees regarding the vaccination requirement should “know how to recognize an accommodation request from an employee with a disability” as employees do not need to specifically state that they are asking for an accommodation to trigger the duty to accommodate.

Notably, the EEOC explicitly states that employers may rely upon recommendations from the Centers for Disease Control and Prevention (“CDC”) and Occupational Safety and Health Administration (“OSHA”) when determining whether a reasonable accommodation exists.  For example, an unvaccinated employee may be accommodated by permitting them to return to the workplace, so long as the employee adheres to all CDC/OSHA guidance (i.e., staying at least six (6) feet away from others and wearing a mask at all necessary times).  As it currently stands, it would be very difficult to demonstrate that an employee with a disability cannot be reasonably accommodated in the workplace as employees have been permitted to enter the workplace without a vaccination for months under federal and state guidance.

Religious Accommodations

According to the Guidance, an employer must also provide a reasonable accommodation to an employee whose “sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination” unless it would pose an undue hardship under Title VII.  An “undue hardship” under Title VII has been defined as having more than a “de minimis cost or burden” on the employer, which is a lower bar than the “significant difficulty or expense” definition under the ADA.

Similar to the disability accommodation process described above, employers must engage in an individualized interactive process with the employee requesting the accommodation.  Notably, the Guidance states that employers should generally assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  That being said, if an 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.”

Significantly, an employee is not entitled to an accommodation simply because they have a vehement opposition to receiving a vaccine as social and political views are not protected under Title VII.

With regard to both disability and religious accommodations, it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting such accommodation.  Therefore, employers should not reveal which employees have or have not been vaccinated.  Further, while an employer may exclude an unvaccinated employee from the workplace when no reasonable disability or religious accommodation exists, the Guidance bluntly states that “[t]his does not mean the employer may automatically terminate the worker.”  Instead, the employer must assess if the employee has rights under any other federal, state, or local laws (such as any applicable leave laws).

Proof of Vaccination

The Guidance discusses that employers may require employees to submit proof of vaccination in connection with a vaccination policy.  That being said, the EEOC cautions that subsequent questions, such as asking why an employee did not receive a vaccination, may elicit disability-related information and, thus, constitute a medical inquiry under the ADA, which must be “job-related and consistent with business necessity.”  To avoid the potential implication of the ADA, the EEOC suggests that an employer “may want to warn the employee not to provide any medical information as part of the proof[.]”

Pre-Vaccination Questions

Employers that administer the vaccine directly to employees, or contract with a third party to administer the vaccine, must also be wary of the potential implication of the ADA and GINA in the pre-vaccine screening process.  As per the CDC, healthcare providers should ask certain medical screening questions before administering a vaccine to ensure there is no medical reason to prevent the person from receiving the vaccination.  Because such screening questions are likely to elicit disability-related information regulated by the ADA, employers must ensure that the pre-screening questions are “job-related and consistent with business necessity.”

Further, employers may violate GINA if the pre-screening questions ask about genetic information (such as family members’ medical histories).  As such, the Guidance cautions employers against asking for an employee’s family medical or genetic history.

Practical Considerations

In addition to the above legal considerations, there are also several practical concerns that may arise when enacting a mandatory vaccination program.  These practical considerations include, but are not limited to:

• Employee relations issues – An employer who adopts a mandatory vaccination program should be prepared to address employee concerns about vaccine safety, efficacy, and any associated cost. It is likely that some employees will not fully understand their ability (or lack thereof) to refuse to abide by the mandatory vaccination policy.
• Wage and hour questions – An employer enacting a mandatory vaccination policy must determine whether employees need to be paid for the time spent getting the vaccine. As various federal and state wage and hour laws apply to this question, employers should consult with counsel.
• Liability concerns – Whether an employer that adopted a mandatory vaccination policy could be held liable for the side effects an employee suffers as a result of receiving the vaccine is an open legal question. It is possible that an employer’s workers’ compensation insurance policy may be triggered in certain scenarios.
• Collective bargaining obligations – Employers with unionized workforces may have an obligation to engage in collective bargaining before enacting a mandatory vaccination policy.

In sum, deciding whether to enact a mandatory vaccination policy is very complicated, from both a compliance and operational perspective.  The above legal considerations may also vary based upon the ever-changing federal and state official guidance and regulations.  As noted above, an employer may alternatively decide to adopt a policy that strongly encourages employee vaccinations.  Any such voluntary vaccination policy should thoroughly educate employees about the vaccine and be updated regularly in accordance with guidance from the CDC.  Employers should consult with counsel before enacting any workplace vaccination policies and stay up-to-date on any relevant developments.