April 20, 2021
With the rollout of the coronavirus vaccine, employers are anxious to get workers back onsite. At the same time, many employees have concerns over vaccinations at work: Can my employer force me to get a Vaccine? What if I refuse? What if I have a disability or religious belief that would prevent me from doing so?
EEOC Provides Guidance on Workplace Vaccinations
On December 16, 2020, The Equal Employment Opportunity Commission (EEOC) published an updated technical assistance document “What You Should Know About COVID 19 and the ADA, Rehabilitation Act. and Other EEO Laws” to address workplace protections affected by the newly available coronavirus vaccines. Despite the obvious public health imperative, requiring workers to receive vaccinations may violate certain employment laws such as the Americans with Disabilities Act (the ADA), the Pregnancy Discrimination Act, Title VII of the Civil Rights Act (Title VII), and the Genetic Information Nondiscrimination Act (GINA).
Based on the EEOC’s guidance, employers may compel employees to get vaccinated for COVID 19 when vaccines are more available to the general public. Workers whose disabilities or sincerely held religious beliefs would be compromised by receiving the vaccine must be treated differently under this guidance. Federal employment laws require employers to provide reasonable accommodations to those individuals with a disability or sincerely held religious beliefs and not automatically terminate an employee who refuses the injection.
Exceptions for Workers with Disabilities
If an employee’s disability prevents them from receiving a COVID 19 vaccination, the employer must engage in an interactive process and assess the availability of reasonable accommodations that would eliminate or reduce the risk of the employee threatening the health and safety of others at their worksite.
To avoid extending an accommodation, employers must demonstrate:
The unvaccinated employee will expose others to the virus at the worksite; and
There is no way to provide a reasonable accommodation, without undue hardship to the employer, that would eliminate or reduce the risk of the unvaccinated employee posing a direct threat.
This doesn’t mean an employer can summarily terminate an unvaccinated employee. The EEOC guidance indicates that even if an unvaccinated worker poses an immediate threat to their worksite that cannot be mitigated by an accommodation, the employer should evaluate options instead of terminating the employee. Remote work, paid leave under state or federal leave laws, and other alternatives may offer mutually agreeable solutions.
The same set of considerations apply to employees whose sincerely held religious beliefs, practices, or observances preclude them from receiving the COVID 19 vaccine.
In general, Title VII prohibits employers from discriminating against an employee based on religion, including refusing to accommodate an employee’s sincerely held religious beliefs or practices. An exception arises when the accommodation imposes an undue hardship on the employer. The EEOC guidance cautions employers that unless they have an objective basis for questioning the sincerity of an employee’s asserted belief or the nature of their practice or observance, the employer should assume that the religious basis for not receiving the vaccine is sincerely held. Where an employer has an objective basis for questioning the religious nature or the sincerity of an employee’s asserted belief, an employer may ask the employee for additional supporting information.
Medical Examination Restrictions
The ADA prevents employers from requiring employees to undergo medical examinations or seeking information about employees’ health status unless the exams or inquiries are job-related and consistent with business necessity.
The EEOC guidance states that administering a vaccine is not a medical examination under the ADA and is therefore permitted. However, the administration process, which likely includes prescreening questions, cannot include questions about an employee’s disability unless those inquiries are job-related and consistent with business necessity. This means an employer that asks prescreening questions about an employee’s disability must demonstrate a reasonable, objective belief that any worker who does not answer prescreening questions (and therefore does not receive the vaccine) will pose a direct threat to the health and safety of themselves or others.
Where the vaccine is recommended or optional, an employer may voluntarily pose prescreening questions. Nonetheless, if an employee elects not to answer those questions, the employer may not retaliate against, intimidate, or threaten the employee for refusing to answer or remaining unvaccinated.
If an employer is not directly administering the vaccination but instead requires proof of vaccination from a third-party vaccine provider, any prescreening medical questions asked by the third party need not meet the “job related and consistent with business necessity” restrictions. This is true even if the employer brings such a third-party provider onto the worksite to administer the vaccine to employees. Any questions asked after an employee receives (or elects not to receive) the vaccine must meet the job-related/business necessity standard. To protect workers’ health data, employers should instruct employees not to provide any other medical information (including genetic information or information about family members) when providing proof of vaccination.