Vaccination Guidance for Employers: Frequently Asked Questions

In this ever-changing COVID-19 landscape, the prospect of employee vaccinations creates many questions and compliance concerns for employers. These concerns include whether, and to what extent, employers can and should require vaccinations for employees.

While current law does not expressly prohibit employers from requiring employees to be vaccinated, various legal exceptions and practicalities must be considered in determining the best course of action. Considering anticipated employee pushback, many employers will likely encourage vaccinations at some level, while allowing for an appropriate opt-out mechanism for those who refuse.

In the absence of definitive law on this issue, employers should look to guidance provided by federal and state agencies to determine the best course of action.

The U.S. Equal Employment Opportunity Commission (EEOC) recently provided direction concerning various employer obligations related to FDA approved COVID-19 vaccines in a series of answers to “Frequently Asked Questions.” See What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws- Technical Assistance Questions and Answers – Updated on Dec. 16, 2020.

As detailed below, the EEOC generally permits employers to require mandatory COVID-19 vaccinations, as long as employers meet several critical EEO compliance concerns.

Question: Is the administration of an FDA approved COVID-19 vaccination by an employer (or health provider connected to the employer) a “medical examination” under the Americans with Disabilities Act (ADA)?

Answer: No. According to the EEOC, a vaccination itself is not a “medical examination” that would impermissibly ask disability-related inquiries. Unlike a medical examination (e.g., vision tests, blood analyses, and x-rays), the administration of vaccination for protection against COVID-19 does not seek information about an individual’s impairments or current health status. EEOC Guidance (12-16-2020), Section K.1.

Question: Can pre-vaccination screening questions potentially violate the ADA?

Answer: Yes. Because pre-vaccination screening questions are almost certain to elicit information relating to an employee’s disabilities, such questions asked by an employer or connected medical provider are considered “disability-related” inquiries under the ADA.

However, the employer can engage in pre-screening questions if it can prove that such pre-screening questions are “job-related and consistent with business necessity.”  To meet this standard, an employer must establish that it held a reasonable belief, based upon objective evidence, that an employee’s failure to vaccinate will “pose a direct threat to the health or safety” of the employee or others. A direct threat is one that causes 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.” 29 C.F.R. 1630.2(r).

There are two scenarios in which an employer may ask pre-screening questions without meeting the “job-related and consistent with business necessity” standard.

First, if an employer offers a voluntary vaccination program to employees, the employee’s decision to answer pre-screening questions must also be voluntary. See 42 U.S.C. 12112(d)(4)(B); 29 C.F.R. 1630.14(d). An employer may not retaliate against, intimidate, or threaten an employee for refusing to answer any such questions.

Second, if the employee receives an employer-mandated vaccination from a third party, who is not contracted with the employer, the ADA restriction on disability-related inquiries would not apply. Based on the EEOC’s guidance, employers who seek to mandate the COVID-19 vaccine should direct employees to receive the vaccine from a third party with whom the employer does not have a contract. EEOC Guidance (12-16-2020), Section K.2.

Question: Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?

Answer: No, simply asking the employee whether they have been vaccinated does not seek protected disability-related information. Employers must be careful not to ask follow-up questions that may elicit disability-related information, such as inquiring why an employee did not receive a vaccination. Employers should caution employees not to provide any additional medical information beyond proof of vaccination. EEOC Guidance (12-16-2020), Section K.3.

Question: Can required employee vaccinations trigger employer obligations to accommodate an employee’s disability under federal law?

Answer: Yes. If a vaccination requirement screens out individuals with disabilities, an 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.”  See 29 C.F.R. 1630.2(r).

The EEOC discussed the obligation to conduct an “individualized assessment” of four factors when determining when such a “direct threat” exists. These factors include: 

• 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.

Before taking further action, the employer would need to conclude that an un-vaccinated individual poses “a direct threat” of exposing others at the worksite to the virus.

Then, and before excluding the employee from the worksite, the employer would need to assess whether there is some other reasonable accommodation that it could provide, that “would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.”

If an employer is unable to reduce a direct threat to an acceptable level, the employer can exclude the employee from physically entering the workplace.

Note: Employers may not automatically terminate excluded workers. Employers must first determine whether any applicable federal, state or local laws apply. For example, employers should consider whether they can offer the employee an accommodation, such as telework or leave under the employer’s policies.

The prevalence of employees in the workplace who have already received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration.

When an employer is determining whether an effective accommodation exists, employers should consider the facts about an employee’s job duties and the workplace. Employers should also consult the applicable Occupational Safety and Health Administration standards and guidance, which can be found here. EEOC Guidance (12-16-2020), Section K.5.

Question: If an employer requires vaccinations, how should it respond to an employee who indicates that they unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?

Answer: Employers must provide a reasonable accommodation to employees whose sincerely held religious belief prevents the employee from receiving the vaccination, (absent an undue hardship).

Under Title VII, an “undue hardship” is an accommodation that would pose more than a de minimis cost or burden on the employer. EEOC guidance explains that employers should ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief. If, however, an employer has an objective basis for questioning either the religious nature or the sincerity of the belief, the employer may request supporting information. EEOC Guidance (12-16-2020), Section K.6.

Question: What happens if an employer cannot provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy due to a disability or sincerely held religious belief?

Answer: Under federal law, if an employee cannot get vaccinated for COVID-19 due to a disability or sincerely held religious belief, and no reasonable accommodation is possible, it would potentially be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker.

Employers will need to determine whether other federal, state, or local laws apply. Employers should consult experienced employment counsel to discuss their options should such a scenario arise. EEOC Guidance (12-16-2020), Section K.7.

Question: Is the Genetic Information Nondiscrimination Act (GINA) implicated when an employer administers a COVID-19 vaccine to employees or requires their employees to provide proof that they have received a COVID-19 vaccination?

Answer: No. The employer administration of a COVID-19 vaccine or a request for proof of such vaccination “does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of ‘genetic information’ as defined by the statute.” EEOC Guidance (12-16-2020), Section K.8.

Question: Is GINA implicated when an employer asks pre-vaccination screening questions, related to a COVID-19 vaccination?

Answer: As with the ADA, pre-vaccination screening questions are likely to elicit information about genetic information. See 29 C.F.R. § 1635.3(c). If the pre-vaccination questions include questions about genetic information, employers should simply request proof of vaccination instead of coordinating or administering the vaccine themselves.

Employers requiring proof of vaccination should warn employees not to provide genetic information as part of the proof. If employers provide this warning, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent, and not unlawful under GINA. See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning. EEOC Guidance (12-16-2020), Section K.9.

Importantly, the EEOC’s focus is on federal law. California’s Department of Fair Employment and Housing has not yet provided guidance concerning mandatory COVID-19 vaccinations in the workplace under California law. As the legal landscape around COVID-19 is still developing, employers should contact a member of our Employment Practice Group with questions. Additional information on COVID-19’s impact on businesses can be found on our COVID-19 Resource Page.

Sue M. Bendavid is a Shareholder in our Employment Defense Practice Group.

This information provides an overview of a specific developing situation. It is not intended to be, and should not be construed as, legal advice for any particular fact or situation.