Yesterday, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued new guidelines for employers that wish to require workers to get COVID-19 vaccinations, detailing the steps businesses must take before banning unvaccinated workers from job sites. The guidance is part of a technical assistance document on the EEOC’s website that the agency has been updating all year to answer questions surrounding how employers should respond to the coronavirus pandemic. The updated guidance lays out the legal framework under the Americans with Disabilities Act and Title VII of the Civil Rights Act for how businesses that adopt a vaccine requirement should approach situations in which a worker cannot receive the shot because of an underlying medical disability or because of their religious beliefs.
According to the EEOC, Employers are required to attempt to provide those individuals with a bona fide reason not to take the injection with a reasonable accommodation or exempt them from the vaccination requirement altogether. If that’s not possible, those employees can be blocked from coming to work but cannot “automatically” be terminated, according to the commission’s guidance, which advised employers to instead take the full range of civil rights laws into account when considering such actions.
If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and no reasonable accommodation is possible, then it is lawful for the employer to exclude the employee from the workplace, according to the guidance. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO or other laws.
The EEOC has said that when disability-related issues prevent a worker from adhering to an employer’s vaccination mandate, businesses should do a case-by-case analysis to figure out if that person poses a “direct threat” to workplace health and safety by being unvaccinated. If such a threat exists, employers must look to provide the worker with a reasonable accommodation, such as teleworking, to mitigate the health risk. According to the EEOC guidance, the employer should only prevent the worker from physically entering the worksite if the direct threat they pose to others “cannot be reduced to an acceptable level.”
With regard to religious objectors to a vaccine, employers must also attempt to accommodate the person’s beliefs as long as it does not pose an “undue hardship,” a term that courts have interpreted as “having more than a de minimis cost or burden on the employer.”
In its latest guidance, the EEOC has also said that the actual process of an employee receiving a COVID-19 vaccine authorized by the U.S. Food and Drug Administration will not be considered a “medical examination” precluded by the ADA. However, the EEOC still urges employers to use caution when asking workers questions about vaccinations before a shot is administered. “Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.”
The EEOC says businesses can require workers to offer proof that they have been inoculated against COVID-19 since it is not an inquiry related to a person’s disability or likely to elicit information about a disability. Additionally, the EEOC said that employers who administer a COVID-19 vaccine or ask employees to show they’ve been inoculated are not triggering the Genetic Information Nondiscrimination Act. However, employers could violate GINA if administering the vaccine requires screening questions that seek genetic information. For this reason, it may be preferable for employers that want to ensure that their employees have been vaccinated may want to request proof of vaccination, instead of actually administering the vaccine themselves. In other words, employers may be better off sending their employees to their own health care professional or a pharmacy for the vaccine, instead of offering it at the workplace. There are a lot of legal pitfalls if you try to administer the vaccine on-site.
If you want to discuss this matter further, please feel free to contact one of the attorneys at Schwartz Rollins, 404.844.4130