Employers can require proof of COVID-19 vaccination — with some exceptions, EEOC says

HR DIVE

Ryan Golden

December 16, 2020

Dive Brief:

• Employers can require proof that employees have received a COVID-19 vaccine — with some exceptions, the U.S. Equal Employment Opportunity Commission (EEOC) said in Dec. 16 guidance.

• COVID-19 vaccinations approved by the Food and Drug Administration do not constitute medical examinations under the Americans with Disabilities Act (ADA), EEOC said, but certain inquiries could implicate the ADA’s rules on disability-related inquiries. Employers requiring vaccination or proof of vaccination must show that such inquiries are job related and consistent with business necessity.

• While federal law sometimes requires employers to grant policy exemptions as religious or disability accommodation, employers may be permitted to exclude from the workplace individuals unable to receive a COVID-19 vaccine under certain circumstances. In the event that an employee is unable to receive a vaccine due to a disability, the employer should conduct an individualized assessment to determine whether a direct threat scenario exists. If a direct threat cannot be reduced to an acceptable level via reasonable accommodation, the employer may exclude the employee from physically entering the workplace, the agency said. Similarly, if an employee is unable to receive a vaccine due to a sincerely held religious practice or belief, and there is no reasonable accommodation possible, an employer may exclude the employee from the workplace lawfully.

Dive Insight:

The agency’s update is a highly anticipated development during the same week the first COVID-19 vaccines were administered to U.S. patients. While the guidance provides clarifications on questions pertaining to various federal laws, EEOC noted that “EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.”

Notably, the guidance specified that administering a COVID-19 vaccine to employees, or requiring proof that employees have received a COVID-19 vaccine, does not involve the use of genetic information to make employment decisions nor the acquisition or disclosure of genetic information. Therefore, Title II of the Genetic Information Nondiscrimination Act (GINA) is not implicated by such requirements. But pre-screening questions that ask about genetic information may violate GINA, EEOC said.

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