The Equal Employment Opportunity Commission (EEOC) has issued guidance to help employers determine whether they can require employees to get vaccinated against COVID-19.
In their update, the EEOC states that administering a vaccine to employees is not considered a “medical exam.” This is important because it means that employers can generally require employees to get vaccinated, subject to certain exceptions, and as long as the vaccination is job-related and consistent with business necessity.
Employers should note, as detailed below, that accommodations and exceptions may need to be made for certain employees. If an employer decides to require the vaccination, requests for exception or accommodation should be reviewed on an individual basis considering the unique facts of each circumstance.
Highlights from the EEOC’s updated guidance include the following:
- Proof of Vaccination: Employers may request proof of vaccination because it is not viewed by the EEOC as a disability-related inquiry. The EEOC notes, however, that subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.
- Employees Who Cannot Get Vaccinated Due to a Disability: Employers may be required to allow employees an exemption from their vaccine mandate based on an ADA covered disability. If an employee requests to be exempted based on disability, employers will need to participate in the interactive process to determine if there is a reasonable accommodation available. The EEOC states that employees who lawfully refuse the COVID-19 vaccine because of a disability can be excluded from the workplace, but only if there is no other accommodation that would allow them to work. To deny an employee’s request to opt-out, the employer would need to 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 Religious Beliefs: Employers may also be required to allow employees an exemption from their vaccine mandate based on religious belief. Employers must provide 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 to their business. If no reasonable accommodation is possible in this case, the employer may be permitted to exclude the employee from the workplace, but not necessarily terminate them.
The EEOC’s full updated guidance on vaccines can be found here.
The decisions for employers on whether or not to require a COVID-19 vaccination, and how to handle exceptions if required, are complex ones. Employers should also keep in mind that there may be applicable state laws to consider in the decision-making process. Your Xenium team is available to support you in this process.