On December 16, 2020, the U.S. Equal Employment Opportunity Commission issued new guidance to employers that want to require employees to get Covid-19 vaccinations when they become available to most Americans. The guidance also outlines the steps that employers must take before they can exclude unvaccinated employees from their facilities and job sites.
The guidance provides a framework under the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 on how employers should handle situations in which an employee cannot or will not get the vaccination because of a disability or a sincerely held religious belief. Employers must attempt to provide those employees with a reasonable accommodation or exempt them from the vaccination requirement altogether. They can also exclude the employees from the workplace, but they should not automatically terminate them. The guidance further provides that employers will need to determine if other rights apply to the employee “under the EEO laws or other federal, state, and local authorities.”
When a disability prevents an employee from obtaining a mandatory vaccination, the employer must conduct a case-by-case analysis to determine if the employee poses a “direct threat” to workplace health and safety if they are not vaccinated. If such a threat exists, employers must determine if a reasonable accommodation exists (e.g., teleworking) that would mitigate the health and safety risks. Employers can only prevent the employee from physically entering the workplace if the direct threat “cannot be reduced to an acceptable level.”
The guidance also states that the actual process of an employee receiving a Covid-19 vaccine will not be considered a “medical examination” for purposes of the ADA if employers administer it themselves or contract with a third party provider to do so. However, the guidance further states that “pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.” If the employer administers the vaccine, it must show that the pre-screening questions are “job-related and consistent with business necessity.” Notably, the guidance says that employers can require employees to provide proof that they have received the vaccine because it is not a disability-related inquiry, but they cannot ask an employee why he or she has not been vaccinated because that question could elicit disability-related information from the employee.
In addition, the EEOC guidance states that pre-screening questions will not implicate the Genetic Information Nondiscrimination Act (GINA) as long as they do not include questions about the employee’s genetic information, including their family medical history. Therefore, if pre-screening questions do include questions about genetic information, then employers may want to request proof of vaccination rather than administering the vaccine themselves. In any event, the ADA requires employers to keep all employee medical information that is obtained during the course of a vaccination program strictly confidential.
Managers and supervisors who are responsible for communicating with employees about the employer’s mandatory vaccination requirement should be trained to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. As always, employers and employees should engage in a flexible, interactive process to identify appropriate accommodations that do not constitute an undue hardship for the employer. The guidance states that employers should consider the prevalence in the workplace of employees who have already received the vaccination and the amount of the disabled employee’s contact with others whose vaccination status may be unknown.
Employers may also rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but there may be situations where an accommodation is not possible. The EEOC guidance further advises employers to consult applicable Occupational Safety and Health Administration standards and guidance. Employers can find OSHA’s Covid-19 guidance here.
For employees who have religious objections to a mandatory vaccination, employers must attempt to accommodate the person’s “sincerely held religious belief, practice, or observance” that prevents the employee from receiving the vaccination unless it would create an “undue hardship” for the employer. Courts have defined an undue hardship as having “more than a de minimis cost or burden on the employer,” according to the new guidance. Because the definition of religion is broad, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. However, if the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice or observance, the employer can request additional supporting information.
If an employee cannot get vaccinated because of a sincerely held religious belief, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. However, this does not mean the employer may automatically terminate the worker, and employer will need to determine if any other rights apply under the applicable EEO laws.
Lastly, the guidance states that managers and supervisors should be reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation due to the employee’s disability or religious beliefs.
The updated guidance document can be found here.
This material has been prepared by Lewis Roca Rothgerber Christie LLP for informational purposes only and is not legal advice. Specific issues dealing with COVID-19 are fluid and this alert is intended to provide information as it is currently available. Readers should not act upon any information without seeking professional legal advice. Any communication you may have with a Lewis Roca Rothgerber Christie LLP attorney, through this announcement or otherwise, should not be understood by you to be attorney-client communication unless and until you and the firm agree to enter into an attorney-client relationship.