EEOC Releases New Guidelines For Employers Considering Mandating the COVID-19 Vaccine

The Equal Employment Opportunity Commission (EEOC) recently released new guidelines for employers within “What You Should Know about COVID-19 and the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Other EEOC Laws.” Employers considering a COVID-19 vaccine mandate should take note of the new guidelines.

The EEOC guidance offers assistance for situations involving employees who refuse the shot due to religious beliefs or an underlying disability. Also, EEOC guidance is available for employers who decide to offer the COVID-19 vaccine at the worksite.

Guidance regarding employees who refuse the COVID-19 vaccine mandate

Employers who decide to mandate the COVID-19 vaccine may legally do so, according to the EEOC. For employers still considering if they should mandate the COVID-19 vaccine, please visit our blog related to this issue.

For employees who are unable to take the vaccine due to a deeply held religious belief, or an underlying disability, the employer must provide a reasonable accommodation, which could include working from home.

If reasonable accommodations aren't possible, employers may ban the employee from the workplace, but they cannot legally terminate an employee with a disability or a deeply held religious belief.

Employees with disabilities

The EEOC suggests employers conduct an analysis to determine if an unvaccinated employee with a disability poses a threat to workplace safety. If the employee is deemed a threat, then employers should consider a reasonable accommodation request.

An employer may prevent an unvaccinated employee with disabilities from entering the worksite if he or she is considered a direct threat to others and the threat “cannot be reduced to an acceptable level.”

Religious beliefs

Employers must also try to provide reasonable accommodations to employees with deeply held religious beliefs, provided the accommodation doesn’t pose an “undue hardship” to the employer.

Guidance on the process of administering the vaccine

Employers may decide to offer the vaccine onsite or they may require employees to provide proof that they received the FDA-approved COVID-19 vaccine at their healthcare provider or pharmacy. The process of receiving the exam onsite or at a third-party provider is not considered a “medical examination” by the ADA, which places limits on the employers’ ability to seek out medical information about a worker or make the worker take medical tests.

According to the EEOC, employers may require proof that employees received the COVID-19 vaccine via a third-party provider since the inquiry “is not likely to elicit information about a disability.”

Onsite COVID-19 vaccine considerations

The EEOC guidelines seem to suggest employers send their employees to offsite facilities for the vaccine for the following reasons:

  • Certain CDC pre-vaccine questions could violate the ADA’s prohibition against questions that are likely to elicit information about a disability. Employers should make sure the questions are “job-related and consistent with business necessity.”
  • Pre-vaccine questions (such as a family medical history of reactions to medications) could also trigger the Genetic Information Nondiscrimination Act (GINA), which shields people from bias based on genetic information.

Employers who wish to implement the vaccine onsite should first consult with their attorneys.

Help is available

The business attorneys at O’Reilly Rancilio are available to answer your questions regarding employment law in the COVID-19 era. For information, call 586-726-1000 or visit our website.