Last week, just after the first COVID-19 vaccines were administered in the United States, the Equal Employment Opportunity Commission (“EEOC”) issued updated guidance regarding vaccination in the  workplace. The guidance confirms that employers may ask employees to provide proof of the COVID-19 vaccine and may require that employees get vaccinated subject to certain exceptions and limitations pursuant to applicable law, including the Americans with Disabilities Act (“ADA”), Title II of the Genetic Information Nondiscrimination Act (“GINA”) and Title VII of the Civil Rights Act of 1964 (“Title VII”). Key takeaways from the EEOC’s guidance are as follows:

• Employers may ask employees to show proof of a COVID-19 vaccination.

Asking for proof of a vaccination alone is unlikely to elicit information about a disability and, therefore, is not an impermissible “disability-related inquiry” under the ADA or a violation of GINA. It follows, although it is not squarely addressed in the guidance, that an employer could ask an employee whether she or he has been vaccinated and that inquiry on its own would not implicate the ADA or GINA. Nevertheless, employers requiring proof of vaccination should advise employees not to provide any personal medical information with their proof of vaccination. Employers should also refrain from asking follow-up questions about an employee’s COVID-19 vaccination to avoid eliciting information about a disability and triggering the ADA and/or GINA. If an employee refuses to provide proof of vaccination or to answer whether she or he has been vaccinated, employers are advised to consult with counsel before continuing the discussion with the employee. All information received by employers regarding employees’ vaccinations must be kept strictly confidential.

• Employers may require that employees receive the COVID-19 vaccine, subject to certain limitations and exceptions, including employers’ obligation to provide reasonable accommodations to employees with disabilities and/or sincerely held religious practices or beliefs.

An employer may require that its employees receive the COVID-19 vaccine if it can demonstrate that an unvaccinated employee would pose a “direct threat” due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” In making a direct threat determination, the employer must conduct an individualized assessment of the following four factors: (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 harm. An employer’s “determination that an unvaccinated individual will expose others to the virus at the worksite” is inherent to a determination that an individual is a direct threat.

Employers also have an obligation to provide reasonable accommodations to employees with (a) disabilities under the ADA and/or (b) sincerely held religious beliefs or practices pursuant to Title VII. If an employer determines that an employee who is unable to be vaccinated due to a disability or a sincerely held religious belief or practice poses a direct threat, then the employer must determine whether it can provide a reasonable accommodation, absent undue hardship (i.e., significant difficulty or expense), to such employee that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.

The guidance encourages employers to train managers and supervisors how to recognize vaccination accommodation requests from employees and how to handle such requests under the ADA. It also instructs employers to engage “in a flexible, interactive process [with employees] to identify workplace accommodation options that do not constitute an undue hardship.”  The interactive process should include determining whether, for example, it is necessary to obtain supporting documentation about the employee’s disability and considering the possible accommodation options given the nature of the employee’s position and working conditions (i.e., whether remote work would be appropriate). Employers are cautioned that given the breadth of the definition of “religion,” employers should ordinarily assume that an employee’s request for a religious accommodation is sincere. However, if an employee has an objective basis to question the religious nature or sincerity of a belief, practice or observance, the employer may request information from the employee to support the accommodation request. If an accommodation is granted, employers are reminded not to disclose that an employee is receiving an accommodation. In addition, employers must not retaliate against employees for requesting accommodations.

After engaging in the interactive process, if a reasonable accommodation is not possible, then the employer may exclude the employee from its workplace. The EEOC guidance is clear that this does not permit the employer to automatically terminate the employee. Instead, the guidance indicates that the employer should assess whether any other leave is available to the employee under federal, state or local laws or the employer’s own policies (i.e., leave under the Family Medical Leave Act, paid sick leave law or other policies of the employer) as an alternative to termination.

• Employers may administer the vaccine to employees or contract with a third party to administer the vaccine to employees subject to certain limitations and exceptions.

The guidance clarifies that administering the vaccine is not considered a “medical examination” under the ADA; however, should employers choose to administer the vaccine themselves or contract with a third party to do so, there are specific considerations regarding pre-screening vaccination questions and other matters that should be evaluated in light of the ADA and GINA. Employers in this situation should seek counsel on these issues.

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If you have any questions regarding equal employment laws or COVID-19 guidance, please contact Anne C. Patin at (212) 574-1516, Julia C. Spivack at (212) 574-1373 or your relationship partner at the Firm.

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