EEOC ISSUES COVID VACCINE GUIDANCE
At the beginning of December, our 2021 HR Considerations white paper identified mandatory COVID vaccination policies as a concern for employers at the start of the new year. This week the Equal Employment Opportunity Commission (EEOC) updated its guidance on COVID-19 employment questions and answers on mandatory COVID vaccination policies, Q&A numbers K.1-K.9.
Requiring a Vaccine. While generally speaking, mandatory vaccination policies have been permissible, this new guidance clarified some of the caveats around COVID-19 vaccine policies.
The short version of the guidance is that employers can require employees receive the vaccine once available to them, as a condition of returning to or remaining in the workplace, however employers must attempt to accommodate employees who due to a disability or sincerely-held religious belief decline or refuse the vaccine.
Implication: This means if an employer is considering such a policy, managers must understand what constitutes an accommodation request and what is the company policy on responding to accommodations.
Direct Threat. If an employer determines based on the objective evidence that the presence of an unvaccinated employee presents a direct threat to he health and safety of others in the workplace that cannot be reduced or eliminated through a reasonable accommodation, that employee can be excluded from the workplace.
Implication: Excluding the employee, however, does not mean that termination is necessarily the end result. In this instance where the perceived direct threat has been determined, the employer must assess whether other accommodation such as remote work can be provided.
Medical Examinations. The EEOC guidance further clarifies that administration of the vaccine is not a “medical examination” under the Americans with Disabilities Act (ADA). However the Centers for Disease Control and Prevention (CDC) recommends health care providers ask pre-vaccine screening questions to ensure there is no medical reason for a person to not receive the vaccine, and these questions may be a medical examination because they may inquire as to disability status.
Implication: If an employer requires these disability related questions, they must demonstrate job-relatedness and business necessity to ask.
Requiring Proof. Also, employers can require employees show proof they received the COVID vaccine because it does not necessarily elicit information about a disability status. This said, employers should not ask why an employee did not receive it because that could reveal disability status and any questioning would have to be job related and have a business necessity.
Implication: Managers need to understand that employees who do not produce this proof should not be asked why and instead be trained on company policy on referring the situation.