The Equal Employment Opportunity Commission (“EEOC”) issued guidance for employers relating to mandating employee COVID-19 vaccinations as a condition of employment. The EEOC confirmed that employers can legally require their employees to receive a COVID-19 vaccination, subject to several caveats.

The primary legal restrictions on employers mandating COVID-19 vaccinations or any other employer-mandated vaccination arise under the Americans with Disabilities Act (“ADA”), which limits an employer’s ability to require employees to undergo medical examinations and make disability-related inquires. The EEOC in its latest guidance confirms that the COVID-19 vaccination is not a “medical examination” and that asking employees whether they have been vaccinated is not a “medical inquiry” within the meaning of the ADA. Employers may also ask employees to show proof of vaccination without running afoul of the ADA, at least according to EEOC’s guidance. However, employers should avoid any follow-up questions and should warn employees not to share any other medical information when providing proof of vaccination because the additional information may elicit disability-related information.

Although the COVID-19 vaccination is not a medical exam under the ADA, the EEOC notes that pre-screening vaccination questions may impact the ADA’s provision on disability-related inquiries and thus employers should be mindful of what questions they ask employees about their health and vaccination status. The ADA prohibits employers from making disability-related inquiries that are not “job-related and consistent with business necessity.” However, the EEOC provides that the pre-screening rule will not apply if the employee receives the vaccination from a non-employer related third party such as the employee’s own health care provider or if the employer offered the vaccine on a voluntary basis, because then answering the pre-screening questions would also be voluntary. Therefore, employers should proceed with caution and consult with counsel if the employer contemplates requiring its employees to receive the COVID-19 vaccination.

While employers can require employees to take the COVID-19 vaccine, employers must make exemptions for employees that have a sincerely-held religious belief or a disability that would prohibit them from taking the vaccine. The EEOC cautioned that if an employee is unwilling or unable to be vaccinated due to an alleged disability or based on a protected characteristic, then the employer must undertake a two-step analysis. First, the employer must assess whether an unvaccinated employee would constitute a “direct threat” to the workplace by considering: “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.” To determine that an unvaccinated employee constitutes a “direct threat,” an employer must conclude that “an unvaccinated individual will expose others to the virus at the worksite.” Second, the employer must consider whether any reasonable accommodation (absent undue hardship) would eliminate or reduce the risk.

Under the ADA, reasonable accommodation is an individualized, fact-based, and interactive process between the employer and the employee. Employers that adopt mandatory vaccination policies and then receive requests from employees for accommodation or exemption are encouraged to contact NavBat to discuss options.