On December 16, 2020, the EEOC issued the anticipated guidance for employers relating to the COVID-19 vaccine. There is nothing particularly surprising in the guidelines.  The EEOC confirms that the laws that it administers do not, as a general matter, prohibit an employer from requiring employees to receive the COVID-19 vaccine or from requiring proof of vaccination.  However, and as expected, employers will have to address accommodation issues where an employee refuses to be vaccinated on account of a disability or religious belief.  In other words, while employers stretched thin and struggling may want to require all of its employees to be vaccinated against COVID-19 at the earliest possible moment, those employees who refuse, (and there will be some, maybe even many) should not be terminated without individual investigation as to the reason for the refusal and evaluation of accommodations which could be made to allow the employee to continue to safely work.

The guidance is set forth in a new section (“K”) added to the EEOC’s previously issued COVID-19 Q&As. See https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.  Employers should note that this guidance only addresses Title VII religious discrimination, the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (GINA).  In other words, like most employment law issues, compliance with these guidelines does not foreclose other claims under state or other federal laws.  The guidance does not address general concerns that employees may have regarding the safety of the quickly developed vaccine, but rather only refusals based upon the legally protected concerns arising from a disability or religious belief.

In the case of an employee refusing the vaccination because, for example, they have a medical condition/disability which makes the vaccination more dangerous to them, an employer should conduct an individual assessment of whether the unvaccinated individual would cause a direct threat to the worksite.  Such an assessment might include such factors as workspace size and layout, employee density, whether the employee has regular direct contact with other employees, the public or people particularly susceptible to COVID-19 complications and whether the employee can effectively work remotely.  The guidance helpfully states that employers “may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available.”  The guidance further states that if 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, then it would be lawful for the employer to exclude the employee from the workplace” but not to “automatically terminate the worker.”

The guidance also addresses the GINA issues and confirms that an employer does not violate GINA by requiring employees to provide proof of COVID-19 vaccination or by administering the vaccine.  The EEOC does note, however, that vaccine pre-screening checklist questions which ask about genetic information would implicate GINA.

The EEOC provides a practical compliance strategy stating: “If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof.  As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.  See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning.”

Questions? Contact attorney Jennifer Adams Murphy in our St. Charles office at jemurphy@wesselssherman.com or by phone at(630) 377-1554