With COVID-19 vaccines already being administered, many businesses feel a heightened sense of urgency and have reached out to us with questions about whether to (and how to) adopt a vaccination policy. For the last few months, employers have pondered, among other things, if they could (or should) implement a mandatory COVID-19 vaccination policy. Recently, the U.S. Equal Employment Opportunity Commission (EEOC) released guidance that addresses this question and other common employer COVID-19 vaccine related questions. Below, we summarize some key questions we have been asked and some elements of that EEOC guidance.
Is a Mandatory Vaccination Policy Permissible?
Strangely, the guidance does not explicitly declare a mandatory vaccination policy to be lawful. However, it does imply that one can be lawful. It also indicates that “vaccination itself is not a medical examination” that would trigger the protections of the Americans with Disabilities Act (ADA) (that generally prohibits an employer from requiring a medical examination or making disability-related inquiries of an employee, unless certain conditions are met). The guidance also suggests that such a policy must allow for reasonable accommodations for a disability or a sincere religious belief.
Can We Keep Non-Vaccinated Employees Out of the Workplace?
To exclude a worker from the workplace for failure to meet a vaccination requirement, 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.” Even then, the guidance cautions that the exclusion does not mean an employer can automatically terminate the employment of that employee, instead it requires other related laws be considered.
Why Are Pre-Vaccination Questions Considered Different?
Although vaccination itself is not considered a medical exam that implicates the ADA, the guidance notes that pre-screening vaccination questions may constitute disability-related inquiries under the ADA that require much more scrutiny. Essentially, the screening questions trigger more legal issues than administering the vaccine itself.
Can We Require Proof of Vaccination from Employees?
The guidance states that simply requiring employees to provide proof of a COVID-19 vaccination is permissible. This is complicated, however, because employers still must be mindful of certain subsequent questions, such as asking employees why they did not receive a vaccination, which may elicit information about a disability and then be subject to the heightened ADA protections.
Where Are We Now?
Although the new guidance (Section K) provides employers with some clarification on certain key elements of a vaccination policy, the analysis is complex and nuanced. Employers who want to consider a mandatory COVID-19 vaccine policy must tread carefully and wade through the somewhat murky waters on how to lawfully implement such a policy, including the case-specific exceptions and analyses the law requires. We expect that guidance on COVID-19 vaccines will continue to develop and evolve, and companies should continue to monitor these changes and consider what approach to employee vaccinations will work best for their business.
For more information on this topic, please contact the authors, Zev Singer and Keli Liu, or your personal Greenwald Doherty contact.