Written by Jeremy Mittman and Thea Rogers
On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) issued much anticipated guidance to employers regarding whether employers can mandate that their employees receive COVID-19 vaccinations.
The key takeaway from this guidance is that employers can require employees to receive the COVID-19 vaccination in order to return to the workplace.
Furthermore, neither the COVID-19 vaccination nor its administration directly implicate the Americans with Disabilities Act (“ADA”) (or the Genetic Information Nondiscrimination Act, for that matter), and so employers need not worry about whether or not either law is triggered if they decide to require employees to receive the vaccination, or require proof of vaccination to return to work (though see below regarding reasonable accommodation considerations under the ADA in connection with requiring that employees are vaccinated).
The EEOC urged employers to proceed with caution, though, if they decide to ask employees vaccination-related questions that go beyond the basic inquiry of “have you or have you not received the COVID-19 vaccination?”
Inquiries that go beyond this basic question, the EEOC stated in its guidance, must be “job-related and consistent with business necessity,” and the employer must 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.” Additionally, regardless of what vaccination-related inquiries are asked, employers must always ensure that employee responses are kept and maintained as confidential information.
What if an employee has disability-related concerns about receiving the COVID-19 vaccine, or has a religious objection to vaccination? In these situations, the EEOC counsels that an employer is required to engage in an interactive process with the employee to determine if it can offer the employee a reasonable accommodation to mandatory vaccination (such as working remotely) that would eliminate or reduce the harm and risk that the unvaccinated employee would pose to the health and safety of other employees at the worksite.
However, if such an accommodation is not reasonably feasible and would cause the employer “undue hardship” under applicable law, then the employer may prohibit the unvaccinated employee from entering the worksite.
The EEOC also advises that the employee should not necessarily be fired for refusing the COVID-19 vaccination— instead, the employer must first determine whether the employee has any other available rights under federal or local laws, including the ability to take unpaid leave under the Family and Medical Leave Act, or in California, the California Family Rights Act.
Many employers are now wrestling with the decision about whether to mandate that employees receive a COVID-19 vaccination when they become available, or if instead they should merely encourage such vaccinations. Please do not hesitate to contact your trusted MSK attorney to discuss this important issue, or to discuss any accommodation-related concerns.