On December 16, the EEOC issued updated guidance for employers in light of the Food and Drug Administration’s (“FDA”) recent authorization of Pfizer’s COVID-19 vaccine for emergency use.  Widespread vaccinations are largely perceived as critical in returning all employees to the workplace safely and resuming normal business operations.  As such, many employers have been grappling with the following question: to what extent can we require, or at least encourage, employees to receive a COVID-19 vaccine?  The EEOC has now issued guidance clarifying that employers are lawfully permitted to require employees to be vaccinated before returning to the office, subject to certain limitations and exceptions.

The updated EEOC vaccine guidance focuses on three topics: (1) accommodations; (2) disability-related inquiries and medical examinations; and (3) the Genetic Information Nondiscrimination Act (“GINA”).  Below, we highlight the key guidance on each topic.

1. Accommodations

The updated guidance makes clear that employers are legally permitted to mandate the vaccine under the EEO laws, provided that the employer makes accommodations, where necessary, for employees who present with disabilities or sincerely held religious beliefs.

Medical Accommodations:  Under the ADA, an employer must reasonably accommodate employees who are disabled, including employees who have disabilities that could prevent them from receiving a COVID-19 vaccine.  However, employers may deny a disability-related accommodation where there is no available alternative that would alleviate the “direct threat” posed by an unvaccinated employee.   A direct threat is one that poses a “significant risk of substantial harm . . . that cannot be eliminated or reduced by reasonable accommodation.”  In meeting this standard, the employer must consider current medical knowledge and objective evidence, as well as: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  In assessing this risk, the EEOC notes that employers should consider the number of other employees in the workplace who have received the vaccine.

The EEOC’s guidance cautions that even if an unvaccinated employee poses a direct threat to the health and safety of others in the workplace, the employer should determine whether there is a reasonable accommodation (one that does not pose an undue hardship to the employer) that would mitigate the direct threat.  As always, employers must engage in an interactive dialogue with employees to determine what, if any, accommodation may be available and appropriate.  Only after it is clear that no such accommodation exists, can an employer bar the employee from the workplace.  In addition, according to the new guidance, an employer cannot automatically terminate the employee if they are unable to receive a vaccination.  Rather, the employer must first consider whether the employee can work remotely and/or is entitled to a statutory or policy-based leave while out of the office, as an alternative to dismissal.

Religious Accommodations:  Employees with sincerely held religious beliefs that conflict with vaccinations may also be entitled to an accommodation.  Similarly to medical accommodations, once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving a vaccination, the employer must provide a reasonable accommodation, unless doing so would pose an “undue hardship” on the employer.  An “undue hardship” is defined as an accommodation having “more than a de minimis cost” or burden on the employer.  According to the EEOC guidance, employers should generally assume that an employee’s religious accommodation request is based on a sincerely held religious belief; however, if an employer has an objective basis for questioning the employee’s belief, the employer can justifiably request supporting information.  And, as with disability accommodations, employers must explore other potential accommodations prior to termination.

2. Disability Related Inquiries and Medical Examinations

The Americans with Disabilities Act (“ADA”) restricts employers’ ability to conduct medical examinations and request medical information from employees.  The EEOC’s guidance clarifies that the COVID-19 vaccination is not itself a medical examination (regardless of whether the vaccine is administered by an employer or by a third party contracted by the employer).

However, because pre-vaccination medical screening questions “are likely to elicit medical information about a disability,” these questions would constitute a disability-related inquiry under the ADA.  Therefore, such inquiries must be “job-related and consistent with business necessity.”  The guidance states that employers can meet this standard if they have “a reasonable belief, based on objective evidence, that an employee who does not answer the questions and therefore does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”  Notably, the guidance clarifies that employers can avoid any issues regarding eliciting medical information from employees if they require employees to be vaccinated by their own medical providers or adopt a voluntary vaccination program.

The EEOC’s guidance also makes clear that merely asking an employee to provide proof of a COVID-19 vaccination does not amount to a prohibited disability-related inquiry.  Nevertheless, employers seeking proof of vaccination should consider affirmatively advising employees not to provide any medical information on such documentation.  Additionally, employers should be aware that if they ask employees follow-up questions about the proof of vaccination (or lack thereof), such questions may be disability-related inquires for which employers must ensure that they meet the ADA’s business necessity standard.  Finally, all information obtained from employees should be kept as strictly confidential.

3. Genetic Information Nondiscrimination Act (“GINA”)

Finally, under Title II of GINA, employers may not discriminate against employees because of genetic information, nor may they request that employees disclose any genetic information.  GINA defines “genetic information” as:

• Information about an individual’s genetic tests;
• Information about the genetic tests of a family member;
• Information about the manifestation of disease or disorder in a family member (e., family medical history);
• Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
• Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

The EEOC’s updated guidance states that administering a COVID-19 vaccination to employees or requiring that employees provide proof that they have received a vaccination does not implicate Title II of GINA, as these acts do not involve the use of “genetic information.”  However, pre-vaccination screening questions could implicate GINA if such questions solicit genetic information (e.g., family members’ medical histories).  For this reason, employers requiring proof of vaccination from a health care provider should instruct employees not to provide any genetic information.

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Proskauer’s other posts on the EEOC’s COVID-19 guidance are available here, here, and here.  Our team is closely monitoring guidance on the COVID-19 vaccine and will continue to provide updates as they become available.

Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns.  Visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.