EEOC Updates Guidance Regarding Vaccinations

In a recently-updated (December 16, 2020) document titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws“, the U.S. Equal Employment Opportunity Commission (EEOC) addressed (in section “K.”), the issue of vaccinations in the context of COVID-19.

For example, the EEOC takes the position that:

  • The vaccination itself is not a “medical examination” within the meaning of the Americans with Disabilities Act.
  • If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks screening questions (i.e., questions to ensure that there is no medical reason that would prevent the person from receiving the vaccination), such questions are subject to the ADA standards for disability-related inquiries.
  • Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a “disability-related inquiry.”

The document also addresses issues regarding mandatory vaccinations.

For example, the EEOC provides the following information with respect to the situation where an employee indicates that he or she is unable to receive a COVID-19 vaccination because of a disability:

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 29 C.F.R. 1630.2(r). Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

It also addresses the scenario where “an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible,” noting that in that instance “it would be lawful for the employer to exclude the employee from the workplace” (but not necessarily automatically terminate them).

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