COVID-19 and EEOC (EEOC Guidance)
- On December 16, 2020, the EEOC issued guidance on various issues raised by COVID-19 in the workplace.
- Basic finding -- when the COVID-19 vaccination becomes readily available, can private employers require employees to take the vaccine? The short answer: Probably, provided employers are mindful that, depending on the work performed, exceptions and accommodations may be required for medical/disability or religious reasons.
- Other key takeaways from the EEOC's guidance include:
- The vaccination itself is not a medical examination. The EEOC's guidance regarding the COVID-19 vaccine states that the mere administration of a vaccination - standing alone - is not a medical examination under the Americans with Disabilities Act ("ADA").
- If conducted by the employer, pre-screening inquiries - which are recommended by the CDC - are likely disability-related inquiries under the ADA. The CDC's vaccine guidance states that health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the employee from receiving the vaccination. If conducted by the employer or a third party contracted by the employer, these pre-screening inquiries are likely disability-related inquiries under the ADA. In order to make such inquiries, the employer would need to have a reasonable belief that an unvaccinated employee will pose a direct threat to the health or safety of themselves or others.
The EEOC noted that if the employer offers the vaccine on a voluntary basis, the ADA requires that the employee's decision to answer be voluntary as well. If the employee refuses to answer the questions, the employer can refuse to administer the vaccine but may not retaliate, intimidate or threaten the employee for refusing to answer.
- A request that an employee show proof of receipt of a COVID-19 vaccine is not a disability-related inquiry. The EEOC notes that there may be a number of reasons why employees choose not to get the COVID-19 vaccine, including reasons that are not disability-related. As such, the mere request for proof of receipt of the vaccine does not implicate the ADA. The EEOC advises that if an employer wants to avoid raising an ADA issue, it may tell employees who receive the vaccine from a third party (like a pharmacy) to not provide any medical information as part of their proof.
- A request that an employee explain why they did not receive the vaccine is a disability-related inquiry. However, asking that employees provide an explanation as to why they did not get the vaccine would be a disability-related inquiry as it may elicit information about the employee's health condition. Accordingly, such inquiries can only be made if the employer can show that an employee who declines to provide such an explanation is a direct threat to themselves or others.
- Determining whether an unvaccinated employee is a direct threat in the workplace is a fact-specific question and may change depending on the working environment. The EEOC advises that employers should consider these four factors when determining if a direct threat exists because of the presence of an unvaccinated employee in the workplace:
- The duration of the risk;
- The nature and severity of the potential harm;
- The likelihood that the potential harm will occur; and
- The imminence of the potential harm.
- The EEOC further noted that a finding of a direct threat would necessarily include the determination that an unvaccinated employee will expose others to the virus in the workplace.
- Even if an unvaccinated employee is a direct threat in the workplace, an employer must provide a reasonable accommodation if one exists. An employer's analysis does not end once it determines that an unvaccinated employee is a direct threat in the workplace. An employer must still engage in the interactive process with the employee to determine if there are any reasonable accommodations that could eliminate the direct threat. Whether an accommodation is "reasonable" will depend on the type of work performed. Health care employers, for example, can likely take the position that no accommodation is reasonable for employees who are involved in direct patient care - that is, that an unvaccinated employee is a direct threat to patients in the workplace. Employers outside health care, on the other hand, will need to consider if there are accommodations that can reasonably improve workplace safety, including requiring an unvaccinated employee to wear a mask or telework (effectively requiring the employee to continue with COVID-19 restrictions post-COVID).
Requested accommodations can be denied if they would present an "undue hardship" to the employer. Whether accommodations are an "undue hardship" is a fact-specific analysis. It is evident from courts that have analyzed the issue that work environment, and the employee's personal medical history, play a role in the accommodation process. Health care employers will have a stronger justification for a no-exception vaccination policy. For other employers, it will be best to try to work with the employee in accommodating their request.
- Employers must also make reasonable accommodations for sincerely held religious beliefs. Mandating vaccines can also raise Title VII issues. Under Title VII, an employee who has a "sincerely held religious belief" may be exempt from a mandatory vaccination requirement. Employees need not necessarily ascribe their reasoning to a traditionally accepted religion to be found to have a sincere religious belief. However, even if an employee has a "sincerely held religious belief," an employer's obligation is to make reasonable accommodations. Thus, as with a disability-related accommodation, employers should take any religious exemption request seriously and engage in an interactive process with the objecting employee to determine if a reasonable accommodation can be met.