On December 16 the EEOC updated its guidance regarding the COVID-19 pandemic to include questions and answers regarding the COVID-19 vaccination. Per the guidance, employers may mandate employees receive the vaccine, but employers who do so, must keep in mind employment non-discrimination laws. Noteworthy provisions of the updated guidance are summarized below:
- Disability-related considerations:
- The administration of the vaccine by an employer or a third party contracted by the employer is not a “medical examination” as defined by the ADA.
- Pre-screening vaccination questions are likely to seek information about employees’ disabilities and, therefore, are likely “disability-related” inquiries. If an employer requires employees to receive the vaccine from the employer or a contracted party, the pre-vaccination questions must be “job-related and consistent with business necessity.”
- Requiring an employee to provide proof that he or she received the vaccination is not a disability-related inquiry.
- If an employee is unable to receive the vaccine due to a disability, the employer must determine whether the unvaccinated employee poses a “direct threat” at the worksite. If the employee does not pose a direct threat, then the employer may exempt the employee from the vaccination requirement. However, if the unvaccinated employee poses a direct threat, the employer must provide a reasonable accommodation for the disability unless such accommodation would pose an undue hardship.
- Religious Considerations:
- If an employee is unable to receive the vaccine due to a sincerely held religious belief, the employer must provide a reasonable accommodation for the religious belief unless it would pose an undue hardship. Unless the employer has an objective reason for questioning the employee, the employer should assume that the request for accommodation is based on a sincerely held religious belief.
- If an employee is unable to receive the vaccine for disability-related or religious reasons, and the employer is unable to provide a reasonable accommodation, then employers may exclude the employee from the workplace.