COVID-19 Vaccinations Prompt Updated Employer Guidance From the EEOC
The Equal Employment Opportunity Commission has revised its guidance surrounding COVID-19, in large part due to the rollout of several new vaccines approved by the FDA. The EEOC has addressed vaccines in the workplace and how employers should handle an employee’s refusal to take them:
1. The vaccine is not considered a “medical examination” for purposes of the ADA, so mandating that employees take it will not violate the law. However, pre-screening vaccination questions likely implicate the ADA’s ban on disability-related inquiries and must be job-related and consistent with business necessity;
2. An employer may have a vaccine requirement for their employees, but if this requirement would affect an employee/applicant with a disability (such that they are no longer able to remain employed), the employer must show that the unvaccinated employee would pose “a significant risk of substantial harm to the health or safety of others and cannot be eliminated or reduced by reasonable accommodation.” Current COVID guidance encouraging masking and social distancing would likely have to be shown to be ineffective;
3. Employers are not prohibited from requiring proof that a COVID-19 vaccine was taken. However, any questions surrounding the reason that proof was not received may implicate the ADA’s ban on disability-related inquiries and must be job-related and consistent with business necessity;
4. Employers are required to provide reasonable accommodation for an employee’s sincerely held religious practices or beliefs. If there is no accommodation available, employers may keep the employee away from the worksite, but may not automatically terminate the employee;
Employers should review this new guidance and prepare their COVID-19 vaccination policies taking it into account. As the vaccinations and their effectiveness (including side effects) continue to be discovered in the coming months, the EEOC will likely issue further guidance to employers regarding their handling of COVID-19 practices.
You can read the entire FAQ HERE.
Heather Reynolds, ESQ