I had been receiving calls about whether employers can require employees to receive the COVID-19 vaccine once it is available to the general public. My guidance had been based on instinct and outdated guidance on pandemic flu. Yesterday, the EEOC released guidance on mandatory COVID-19 vaccinations. The long and short of it: It is better to strongly encourage vaccination than require it, even if legally permissible. If voluntary vaccination is provided in the workplace, it is best to use a third party provider to administer the vaccines.

Employers who want to require COVID-19 vaccination should follow the following framework to avoid religious discrimination under Title VII of the Civil Rights Act and disability discrimination under the Americans with Disabilities Act (ADA):

  1. Does an employee have a sincerely held religious belief, practice, or observance that would prohibit vaccination?
    • If so, is there a reasonable accommodation that would allow vaccination, without posing an “undue hardship” on the employer (more than a de minimis cost or burden)?
    • If not, do not require vaccination. The employer must then consider how to accommodate the unvaccinated employee, such as through telework, without posing an “undue hardship” on the employer. The employer may exclude the employee from the workplace. The employer may not automatically terminate the employee.
  2. Does the employee have a medical condition (i.e., disability) that would prohibit vaccination?
    • If so, is there a reasonable accommodation that would permit vaccination?
      • If so, utilize the reasonable accommodation and require vaccination (highly unlikely).
      • If not, consider whether the employee poses a “direct threat” to workplace health and safety by being unvaccinated.
        • If the employee is a direct threat, the employer must consider reasonable accommodations, like teleworking, to mitigate the risk. The employer may only prevent the employee from working if there is no way to mitigate the direct threat posed by the unvaccinated employee. The employer must consider paid and unpaid leave options as an accommodation before considering termination.
        • If the employee is not a direct threat, do not require vaccination and permit the employee to work as normal.
        • In assessing the “direct threat,” employers should consider the prevalence of employees who are vaccinated and the amount of contact between the unvaccinated employee and others.

The EEOC also stated that vaccination itself is not a prohibited medical examination under the ADA. Pre-screening questions asked before the vaccination may be a medical examination (and elicit medical information) if the vaccination is conducted by the employer. If the employer administers the vaccine, the pre-screening questions must be “job-related and consistent with business necessity”–meaning that the employer must show that the employee who does not answer the questions will pose a “direct threat” to workplace safety or health. This “direct threat” analysis is not necessary: (1) if the vaccination is conducted on a voluntary basis or (2) if the vaccination is conducted by a third party without a contract with the employer, such as a pharmacy or healthcare provider. An employer is wise to utilize a third party provider to screen employees for vaccination and administer the vaccines, even if the vaccination occurs on employer property. Voluntary vaccination also is advisable.

Additionally, employers can require proof from employees of vaccination. Asking additional questions about why an employee is not vaccinated could run afoul of the ADA or the Genetic Information Nondiscrimination Act (GINA) by eliciting disability-related information and/or genetic information (e.g., family history inquiries).