January 30, 2023

Volume XIII, Number 30


January 30, 2023

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EEOC Issues Updated Guidance Regarding COVID-19 Vaccines

On December 16, 2020, just days after the first doses of COVID-19 were administered in the United States, the Equal Employment Opportunity Commission (EEOC) issued updated guidance providing employers with critical information regarding the intersections of mandated employee COVID vaccinations and federal employment laws. This guidance confirms the EEOC’s position that employers are permitted to require employees to receive a COVID-19 vaccination, subject to legal protections related to disabilities, sincerely held religious beliefs, and genetic information. 

Employee Disability Exceptions:

Some employees may not be medically able to receive a COVID vaccine due to a disability. The Americans With Disabilities Act (ADA) allows employers to impose a qualification standard ensuring that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace”; however, before an employer can use this requirement to prohibit employees from entering the workplace where those employees claim they cannot be vaccinated due to a disability, that employer must establish that an unvaccinated employee would indeed pose a “direct threat” to the health and safety of other employees “that cannot be eliminated or reduced by reasonable accommodation.” Consequently, the EEOC advises employers to conduct an individualized assessment accounting for the following four factors: “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.”

If the employer concludes that the unvaccinated employee presents a direct threat to others in the workplace, the employer still cannot immediately exclude the employee from the workplace without first determining whether there is a reasonable accommodation that will eliminate or reduce the risk. Even where the employee cannot be reasonably accommodated, the ability to exclude that employee from the workplace does not necessarily permit the employer to terminate his/her employment. Instead, the employer must consider other options, like remote working. The EEOC encourages employers to engage employees “in a flexible, interactive process to identify workplace accommodation options,” particularly to avoid ADA or Title VII implications.

Religious Objections: 

Mandatory vaccination may also implicate religious beliefs and trigger protections under Title VII of the Civil Rights Act of 1964 (Title VII). If an employee refuses to receive a vaccination based on a sincerely held religious belief, the guidance states that employers must provide a reasonable accommodation unless it would pose an “undue hardship” on the employer. The EEOC advises that employers should “ordinarily assume” that religious accommodation requests are based on sincerely held religious beliefs.  If an employer has an “objective basis” to question either the religious nature or sincerity of the belief asserted by the employee, the employer may request additional supporting information.

Vaccinations are Not Medical Examinations, But Pre-Screening Questions Might Be:

The EEOC guidance states that the “vaccination itself is not a medical examination” within the meaning of the ADA, but that “pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries; i.e., inquiries likely to elicit information about a disability.”  Accordingly, if an employer administers the vaccine, it must ensure that pre-screening questions posed to employees are “job-related and consistent with business necessity,” meaning an employer must have a reasonable belief, supported by objective evidence, that an employee who does not participate in the pre-screening, and consequently does not receive a vaccination, “will pose a direct threat to the health or safety of her or himself or others.” If the vaccination program is voluntary or administered by a third party that does not have a contract with the employer, such as a clinic or pharmacy, the ADA business necessity restriction would not apply to pre-screening questions.

Requiring Proof of Vaccination: 

Another important consideration for employers is obtaining proof of vaccination. The EEOC guidance states that employers are permitted to ask employees to show proof of COVID-19 vaccination without running afoul of the ADA, confirming this sort of inquiry would not be disability-related. 

Genetic Information Nondiscrimination Act (GINA) Considerations: 

The guidance also addresses issues related to GINA; a statute often overlooked by employers. The guidance states that administering a COVID-19 vaccine and requiring proof of vaccination do not implicate GINA, but pre-screening questions can if they elicit genetic information, including questions regarding the immune systems of family members. Accordingly, if pre-screening questions unavoidably include questions about genetic information, the EEOC suggests that employers consider requesting proof of vaccination in lieu of administering the vaccination themselves. In this scenario, the employer should warn employees not to provide genetic information as part of their proof of vaccination.

Takeaways:  The EEOC’s guidance provides timely clarification for employers considering employee vaccination options. The key takeaway is that employers can offer COVID vaccinations to employees on a mandatory or voluntary basis subject to limitations contained in the same federal employment laws that govern nearly every other aspect of the employment relationship, and employers are reminded to carefully assess the full range of legal issues prior to implementing a vaccination policy or plan. 

© 1998-2023 Wiggin and Dana LLPNational Law Review, Volume X, Number 352

About this Author

Mary Gambardella Litigation lawyer Wiggin Dana

Mary brings decades of experience in helping clients comply with ever-changing labor laws and regulations, as well as in managing employment challenges such as sensitive terminations, sexual harassment, reductions in workforce, discrimination claims, and severance agreements. She is a proactive resource for clients seeking her counsel on a variety of human resource issues before they become a costly crisis, as well as a fierce advocate when crises arise.

Mary is Chair of the firm’s Labor, Employment and Benefits Department and regularly represents employers in...

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Lawrence Peikes Employment litigation lawyer Wiggin Dana

Larry represents the interests of management in all aspects of the employer-employee relationship and is particularly experienced in litigation defense. He has advocated for employers in a wide range of employment cases—before arbitrators, mediators, and government agencies as well as in state and federal courts. In a field where most attorneys rarely appear before a judge, let alone a jury, Larry has successfully tried cases on both the federal and state levels. Despite his extensive courtroom experience, Larry is first and foremost dedicated to finding the best, most...

Joshua Wyatt Labor & Employment Attorney

Josh is an Associate in Wiggin and Dana's Labor, Employment and Benefits Department.

Josh's practice is focused on defending employers against claims of discrimination in state and federal courts, as well as a variety of administrative agencies, including the Connecticut Commission on Human Rights and Opportunities. Josh also represents employers in litigation regarding the enforcement of restrictive covenants. He regularly prepares and advises clients regarding employee handbooks, personnel policies and practices, implementation and enforcement of restrictive covenants, offer...

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