On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued its first direct guidance for employers regarding COVID-19 vaccines approved or authorized by the Food and Drug Administration (FDA). The EEOC is responsible for enforcing federal laws against job discrimination and harassment.

This week, as we are seeing the first doses of the COVID-19 vaccination being administered in the United States, the EEOC has answered important questions for employers that are considering their own vaccination programs—including whether to make the vaccine mandatory or voluntary, what questions employers can ask of employees regarding underlying health conditions with regard to administering the vaccine and what exceptions must be made for employees who object to taking the vaccine for various reasons.

These are the important takeaways for employers under the federal employment laws (note that some states have additional laws that may govern):

• Mandating the vaccine and exceptions to the rule. Employers may require employees to take the COVID-19 vaccine, subject to certain legally protected exceptions for disability and sincerely held religious beliefs.

  • The Americans with Disabilities Act (ADA) and Disability Exceptions. With respect to exceptions for disability, the ADA permits employers 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 this tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a “direct threat” to the health and safety of the individual or others that cannot be eliminated by a reasonable accommodation (which may include remote work or a temporary leave of absence).

  • Title VII and Religious Exceptions. With respect to exceptions for sincerely held religious belief, practice or observance, employers must provide reasonable accommodation for such beliefs unless it would pose an undue hardship (which, for religious belief, is defined as “more than a de minimis cost or burden to the employer”).

  • Documentation to Support Request. Employers may generally request that the employee provide supporting documentation to support exception requests for disability or religious reasons.

  • Excluding a Worker Where No Reasonable Accommodation Is Possible. If no reasonable accommodation is possible and the employee is unable to be vaccinated, the EEOC states that the employer may “exclude” the worker from the workplace, but this does not necessarily mean that the employer can automatically terminate the worker.

• Administering the vaccine—the ADA. If an employer requires the vaccine, or contracts with a vendor to provide the vaccine, then the pre-vaccination medical screening questions are subject to ADA standards for disability-related inquiries (e., must be job-related and consistent with business necessity); if voluntary, or if the employee receives the vaccine from a third party that does not have a contract with the employer, then these ADA restrictions do not apply.

• Administering the vaccine may violate the Genetic Information Nondiscrimination Act (GINA) if pre-screen questions elicit genetic information. GINA prohibits an employer or a doctor working for the employer from asking employees questions about genetic information. Therefore, to the extent pre-vaccination questions elicit information about genetic information (g., questions about immune systems of family members), the EEOC recommends that employers who want to ensure that employees have been vaccinated opt to request proof of vaccination, rather than administer the vaccine themselves.

• Proof of vaccination. Employers may ask employees to show proof of receipt of a COVID-19 vaccination—this is not a disability-related inquiry under the ADA nor is it a request for genetic information under GINA. Employers are encouraged to warn employees not to provide medical or genetic information as part of the proof.

While the EEOC’s guidance answers many questions, it also leaves many important questions unanswered, and raises new ones—including whether healthcare employers will be able to administer the vaccine to their employees if doing so requires a pre-vaccine questionnaire that elicits genetic information; whether employers should mandate the vaccine; and what businesses should be thinking about, and planning for right now, in making these decisions.