New Federal Guidance for Requiring COVID Vaccinations

With some exceptions, you may legally require your employees to get a COVID-19 vaccination as long as the disease is a threat to the workplace.

As vaccines are being developed and made available, many employers are wondering whether they can protect their employees and customers by requiring all employees be vaccinated.

The Equal Employment Opportunity Commission (EEOC), the federal agency in charge of enforcing laws prohibiting discrimination in the workplace, issued guidance in December 2020 for employers who want to require employees to get vaccinated before entering the workplace.

U.S. law allows private employers to define general working conditions, including the adoption of health and safety practices. Setting up practices and procedures includes requiring employees to get vaccinated against diseases that could compromise the health and safety of everyone in the workplace.

Despite new EEOC guidance, employers must consider the impact of equal employment opportunity (EEO) laws, including the American Disabilities Act (ADA); Rehabilitation Act; Genetic Information Nondiscrimination Act (GINA); and Title VII, including the Pregnancy Discrimination Act. Some possible challenges include:

• ADA limits employers’ ability to make disability-related inquiries or require medical examinations. The COVID-19 vaccination, however, is not considered a medical examination.
• A health care provider may need to ask questions before administering the vaccination to ensure there is no medical reason to prevent an employee from receiving a vaccination. The pre-screening questions may trigger the ADA’s provision on disability-related inquiries, which are likely to elicit information about a disability. If the employer administers the vaccine, it must show that these pre-screening questions are “job-related and consistent with business necessity.” The employer must demonstrate that employees who do not answer the questions and don’t receive the vaccination will pose a direct threat to the health or safety of others. There are four factors employers can use to determine whether a direct threat exists: duration of the risk; nature and severity of the potential harm; likelihood that the potential harm will occur; and imminence of the potential harm.
• Title II of GINA prohibits an employer from asking questions about genetic information.
• An employer may require an employee to show proof of receipt of a COVID-19 vaccination. That is not the same thing as making a disability-related inquiry according to ADA guidelines. However, if the employer asks why an employee did not receive a vaccination, that might elicit information about a disability and would be subject to the pertinent ADA standard that vaccinations be “job-related and consistent with business necessity.”

Another option for employers who mandate the COVID-19 vaccine is to have employees get vaccinated at a pharmacy, health care provider or other third party not contracted by the employer. The pre-vaccination screening would not be a disability-related inquiry.

Employers who are not in high-risk industries, such as health care, can make vaccinations voluntary. Voluntary vaccination programs do not trigger the ADA’s requirements to demonstrate that the pre-vaccination screenings are “job-related and consistent with business necessity”, nor do they require the employer to assess accommodations and show that not getting a vaccination would be a threat to the business.