On December 16, the EEOC updated its COVID-19 guidance to address the specific issue of vaccinations in the context of various laws in the workplace. Key takeaways are below:
- The EEOC acknowledged that employers’ mandatory-vaccination policies would not violate the ADA or Title VII, as long as they contain exemptions for religious reasons and for individuals with a disability. However, whether public school districts have such authority is not specifically addressed in the EEOC’s guidance and should be discussed with legal counsel. Discussion with legal counsel is particularly important here, where the FDA has issued an Emergency Use Authorization (EUA) for the current vaccines and not a full approval, and EUAs require vaccine recipients to be informed that “they have the option to accept or refuse the vaccine.”
- Even with a mandatory-vaccination policy, employees who are not vaccinated because they qualified for an exemption can be excluded from the workplace only if they “pose a direct threat to the health or safety of [themselves] or others.” Whether they pose a direct threat must be assessed on the following factors: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm will occur; and (d) the imminence of the potential harm.
- Before excluding such an unvaccinated employee who poses a direct threat—i.e., who will expose others to the virus at the worksite—the employer has to determine if there is a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.
- Requiring proof of COVID-19 vaccination is permitted under the ADA and is not considered a disability-related medical inquiry, as long as additional medical information is not requested or shared. Pre-vaccination questions might implicate the ADA and/or the Genetic Information Nondiscrimination Act, depending on the circumstances, so discuss the details with legal counsel.
Of course, there are many additional details to consider before making any decision about mandatory or optional COVID-19 vaccination programs, as well as potential bargaining obligations. Be sure to contact legal counsel to discuss.
