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New EEOC Guidance May Permit Employers to Require FDA-Approved COVID-19 Vaccine in Limited Circumstances

On December 16, 2020, in the wake of the Food and Drug Administration’s (FDA) emergency use authorization for the first COVID-19 vaccine, the EEOC delivered new guidance as to the rights and responsibilities of both employers and employees regarding the administration of vaccines and the intersection with various equal employment opportunity laws, including the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Title VII of the Civil Rights Laws.

This much-anticipated update to the EEOC’s “What Should You Know” question-and-answer article comes months before COVID-19 vaccines will be available to most Americans, but well enough in advance that employers can begin developing protocols and standard operating procedures surrounding requiring their employees to be vaccinated before returning to work.  However, given that the availability and efficacy of the vaccines is still very much in question, this guidance is likely subject to changes as the world pivots toward immunization from the virus.

The EEOC’s guidance makes clear that, although the ADA prohibits employers from requiring a medical examination or making a disability-related inquiry, there are a number of steps employers may take related to COVID-19 vaccination which do not violate the law.  However, these steps are subject to several limitations and potential pit-falls, which are summarized below.

Pre-Vaccination Medical Screening & Administration of Vaccine at the Workplace

Employers can ask pre-vaccination medical screening questions and administer vaccines to their employees, so long as the questions do not seek information about an employee’s impairments or current health status, and are “job-related and consistent with a business necessity.”  This means employers would be required to demonstrate a reasonable belief, based on objective evidence, that employees who refuse to answer pre-vaccination screening questions (and thus do not receive a vaccine) will pose a “direct threat to the health or safety of themselves or others.”  However, if the vaccination is voluntary, the screening questions must also be voluntary, and the employer must not retaliate against any employee who declines to answer the questions.

Proof of Vaccination

Second, employers may request proof that their employees have received a COVID-19 vaccination from a pharmacy or their own health care provider, so long as the employer does not ask follow-up questions about why an employee did not receive a vaccination.  In addition, it may be prudent for employers to warn their employees to be careful not to provide any medical information as part of the proof provided, so as not to violate the ADA.

Excluding Unvaccinated Employees from the Workplace

Third, employers may only require their employees to receive COVID-19 vaccines if the unvaccinated individual would pose a “direct threat” due to a “significant risk of substantial harm to the health and safety of others” AND the employee cannot be provided a reasonable accommodation which would mitigate or eliminate that risk.  The four (4) factors to be considered in whether a direct threat exists are as follows:

  1. the duration of the risk;
  2. the nature and severity of the potential harm;
  3. the likelihood that the potential harm will occur, and
  4. the imminence of the potential harm.

In the context of COVID-19, this analysis may support an employer’s conclusion that an unvaccinated individual would expose other employees to the virus in the workplace, and may depend on the nature of the employee’s duties, the type or location of the workplace, and the frequency of contact with other employees.

Availability of Reasonable Accommodations or Leave

Thus, an employer must first conclude that the employee cannot be reasonably accommodated to eliminate or reduce the risk in order to exclude an employee from the workplace for failing to get a vaccination.  This requires the employer’s managers and supervisors to engage in a flexible, interactive process with those employees to determine whether additional medical documentation is necessary, and whether some hardship exists, such as the difficulty or expense, that prevents the employer from being able to offer the accommodation requested.

However, if the employee requests an accommodation from the vaccine requirement, the employee may be entitled to telework, leave under the Families First Coronavirus Response Act, leave under the Family Medical Leave Act (FMLA), or the employer’s own policies. If the employee cannot get vaccinated for COVID-19 due to a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, an employer may exclude them from the workplace.

In any case, it is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation related to COVID-19 or COVID-19 vaccine, or retaliate against an employee in any way for requesting an accommodation or engaging in the required interactive process.

Resources for Employers & Employees

Employers are encouraged to consult the Job Accommodation Network (JAN) website as a resource for COVID-19 matters, as well as guidance provided by the Center for Disease Control (CDC) and Occupational Safety and Health Administration (OSHA), for updated recommendations regarding reducing risk and reasonable accommodations related to COVID-19.

Employees who may be required to receive a vaccine or otherwise show proof of a vaccine, but is unable to be vaccinated due to a disability or sincerely held religious believe, practice, or observance, should consult an experienced employment law attorney to navigate the reasonable accommodation process and ensure their employers are complying with the ADA, Rehab Act, FMLA, and Title VII of the Civil Rights Act.

For more information or to speak with one of Tully Rinckey’s employment attorneys, please contact (518) 218-7100 or

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