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In the wake of the U.S. Food and Drug Administration’s first grant of Emergency Use Authorization (EUA) for a COVID-19 vaccine, the Equal Employment Opportunity Commission (EEOC) updated its pandemic guidance to address the legal issues surrounding the intersection of the COVID-19 vaccine and Equal Employment Opportunity (EEO) laws. The guidance—in the form of Technical Assistance Questions and Answers called What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (“New Guidance”)—is the EEOC’s first substantive position statement on the requirements of EEO laws relative to vaccines since the 2009 H1N1 influenza pandemic and paves the way for COVID-19 vaccines in the workplace. During the H1N1 pandemic, EEOC advised employers, “Generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it,” and noted that any employer requirement that employees take the influenza vaccine must allow for reasonable accommodations for disabilities and sincerely held religious beliefs under the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (“Title VII”).
In its New Guidance, EEOC has backed off of its recommendation of avoiding vaccine mandates but never squarely states that employers may require COVID-19 vaccines. Nevertheless, based on EEOC’s conclusion that vaccines are not regulated “medical examinations” and the inclusion in the New Guidance of an entire section devoted to the rules governing the administration of mandatory vaccine programs, it appears EEOC agrees that employers may indeed mandate vaccines, subject to a number of caveats. These caveats and EEOC’s guidance on a number of additional vaccine-related issues are discussed below.
EEOC bases its New Guidance on traditional concepts and rules found in the ADA and its regulations. Understanding these rules may help employers better understand and comply with the vaccine guidance. Under the ADA, employers may require that an individual not pose a “direct threat,” which is defined as 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.” In March 2020, the EEOC declared that COVID-19 poses a direct threat, a declaration it never made with regard to the H1N1 influenza. This conclusion seems to inform much of EEOC’s guidance regarding COVID-19 vaccines.
The ADA also prohibits covered employers from making disability-related inquiries and requiring medical examinations of current employees unless those inquiries or exams are “job-related and consistent with business necessity.” Disability-related inquiries and medical examinations are considered job-related and consistent with business necessity where an employee will pose a direct threat if he or she has a specific medical condition. Because EEOC has declared that COVID-19 poses a direct threat, employers have more (but not unfettered) leeway to probe employees about their health and require exams related to COVID-19 and to require vaccines as a condition of employment.
The New Guidance clarifies EEOC’s position on three important issues related to the extent to which employers may require vaccines and probe employees for information needed to administer a vaccine program in the workplace:
1. Vaccines are not medical examinations. EEOC declares that COVID-19 vaccines approved or authorized by the Food and Drug Administration (FDA) administered to an employee by an employer (or by a third party contracted by the employer) are not considered a “medical examination” under the ADA. A medical examination is a “procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” If the vaccine is administered to an employee by his or her employer for protection against COVID-19, the employer is not seeking information about the individual’s impairments or current health status.
2. Pre-screening questions for vaccines are disability-related inquiries that generally must be job-related and consistent with business necessity. EEOC states that pre-screening questions are likely to elicit information about a disability and are therefore disability-related inquiries. Despite declaring COVID-19 a direct threat, EEOC does not give employers a blanket pass to make these inquiries. Rather, EEOC requires, on a case-by-case basis, that the employer 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 herself or himself or others. EEOC allows for two exceptions to this requirement: (1) if a vaccine is offered to employees on a voluntary basis, and the decision to answer pre-screening, disability-related questions is also voluntary; and (2) if an employee receives the vaccine from a third party that does not have a contract with his or her employer.
3. Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. EEOC states that requesting proof of receipt is not likely to elicit information about a disability. This means that it should not violate the ADA for an employer to require employees to obtain a vaccine from an independent provider and present proof of the vaccine. EEOC notes, however, subsequent questions such as asking why an individual did not receive a vaccination may elicit information about a disability and would be subject to the “job-related and consistent with business necessity” standard.
Apparently presuming that some employers will mandate vaccines, EEOC guidance discusses at length the steps employers may (and may not) take when an employee cannot take the vaccine due to a disability. The bottom line is that employers may not simply terminate an employee who cannot be vaccinated due to a disability. Employers must follow a waterfall of steps before termination:
1. Establish the employee poses a direct threat. EEOC states if safety-based qualification standards such as vaccination requirements screen out or tend to screen out individuals with disabilities, employers must show that the unvaccinated employee would pose a direct threat. EEOC advises employers to conduct individualized assessments to determine whether a direct threat exists. Notably, EEOC does not assume that every employee who runs the risk of a COVID-19 infection poses a direct threat. Instead, EEOC states that a “conclusion that there is a direct threat would [necessarily] include a determination that an unvaccinated individual will expose others to the virus at the worksite.”
2. Explore reasonable accommodations. According to EEOC, if an employer determines that an employee who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace “or take any other action” unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk so the unvaccinated employee does not pose a direct threat. Again, EEOC emphasizes the importance of an individualized assessment of reasonable accommodation and undue hardship, including “[t]he prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown.” If the direct threat cannot be reduced, the employer may exclude the employee from physically entering the workplace, but not necessarily terminate the employee.
3. Consider the applicability of other EEO and other federal, state, and local laws. Before terminating an employee properly excluded from the workplace, EEOC states that employers must consider the requirements of EEO laws and other federal, state, and local authorities. For example, the employer should consider whether the employee can perform the job remotely or is eligible for leave under the Families First Coronavirus Relief Act, the Family and Medical Leave Act, or other similar laws.
In its discussion of mandatory vaccines, EEOC notes that “[s]ome COVID-19 vaccines may only be available to the public for the foreseeable future under EUA granted by the FDA, which is different than approval under FDA vaccine licensure.” Further, EEOC links to an FDA web page titled Emergency Use Authorization for Vaccines Explained and includes the following quote from that web page: “FDA has an obligation to ‘ensure that recipients of the vaccine under an EUA are informed . . . that they have the option to accept or refuse the vaccine, and of any available alternatives to the product.’”; In addition, although EEOC does not mention it in the New Guidance, the FDA fact sheets for the two vaccines currently available under an EUA tell vaccine recipients—and instruct healthcare providers to tell recipients—that it is the recipients’ “choice to receive or not receive” the vaccine. The statutory EUA requirements do not appear to address a private employer’s ability to mandate the vaccine, and EEOC has not stated that the FDA’s statements on this topic impact an employer’s right under the ADA to mandate the vaccine; but EEOC’s inclusion of this topic in the New Guidance at least raises the question as to how EEOC, the Occupational Safety and Health Administration (OSHA), or the courts might respond to an employer that takes adverse action against an employee who objects to taking a vaccine because it is authorized only under an EUA.
EEOC reminds employers that pregnancy-related medical conditions may be disabilities under the ADA even though pregnancy is not itself a disability. Therefore, pregnant employees who cannot take the vaccine due to a pregnancy-related medical condition may also be entitled to reasonable accommodations. EEOC further reminds employers that under the Pregnancy Discrimination Act, women affected by pregnancy, childbirth, and related medical conditions must be treated the same as other employees who are similar in their ability or inability to work.
Under Title VII, an employer must provide reasonable accommodation for an employee’s sincerely held religious belief, practice, or observance, unless it would impose an undue hardship on the employer. The New Guidance states that this standard applies to employees who cannot take the COVID-19 vaccine because of such a belief, practice, or observance. The New Guidance clarifies that employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, unless the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, in which case the employer would be justified in requesting additional supporting information.
Employers may establish that an accommodation for a religious belief, practice, or observance poses an undue hardship if the accommodation imposes more than a de minimis cost or burden on the employer. This is a less strict requirement to establish undue hardship than what is required under the ADA (but employers should be mindful of parallel state laws that may apply a more onerous standard). As is the case with disabilities, if the employer cannot provide a reasonable accommodation without undue hardship, then the employer may exclude the employee from the workplace and may ultimately terminate the employee’s employment, after considering and providing any other rights the employee may have under EEO or other laws.
The New Guidance states that administering the COVID-19 vaccine to employees or requiring employees to provide proof that they have received a vaccine does not implicate Title II of GINA because it neither involves the use of genetic information to make employment decision nor the acquisition or disclosure of “genetic information” as defined in GINA.
EEOC further states, however, that it may violate GINA if administration of the vaccine requires pre-screening questions that ask about genetic information, including family members’ medical history. If pre-screening questions include questions about genetic information, EEOC advises employers to request proof of vaccination from a third party instead of administering the vaccine themselves. Similarly, employers that require employees to provide proof of vaccination from their healthcare provider should warn employees not to provide genetic information as part of the proof.
EEOC’s guidance on COVID-19 vaccines generally approves of mandatory vaccines but not with carte blanche approval to require vaccines of all employees under all circumstances. Employers will benefit from becoming familiar with EEOC’s position on vaccines, including added requirements for employers that mandate vaccines (as compared to those who merely encourage them) or that administer the vaccines directly or through a contracted provider (as compared to those who merely require proof of vaccination from a third party).
Employers will also benefit from understanding EEOC’s position on individualized assessments for direct threat and reasonable accommodation and on training employees responsible for administering any vaccine rules or programs as to EEOC’s New Guidance.
Finally, employers should familiarize themselves with EEOC’s guidance regarding the limitations on workplace vaccines under EEO laws other than the ADA, including Title VII, GINA, and the Pregnancy Discrimination Act.
As vaccine availability increases and employers begin implementing their own vaccine policies, EEOC’s guidance may evolve to address real-life circumstances that may arise during his unprecedented effort to vaccinate so many employees as quickly as possible. Courts, which have the final say on the rules, may eventually adjudicate disputes that arise, offering further guidance. Stay tuned for 2021 developments.
 42 U.S.C. § 12112(d).
 Section 11(c) of the Occupational Safety and Health Act, 29 U.S.C. § 660(c), protects employees from discrimination or retaliation for complaining internally or to OSHA about safety and health concerns.