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EEOC Releases New Guidance for Employers Regarding COVID-19 Vaccine

December 23, 2020

By Julio R. Olaya, Jr.


On Wednesday, Dec. 16, the EEOC released new guidance for employers regarding how the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA) will impact administration of the COVID-19 vaccine. That guidance, which came in the form of frequently asked questions, recognizes the complex legal questions that arise with administering a COVID-19 vaccine in an employment context.

The full text of the EEOC guidance can be found here.

The following are highlights of the answers: 

  • A pre-vaccination medical screening to determine that no medical reason prevents an employee from receiving the vaccination is likely to elicit information about a disability and so is “disability-related” under the ADA. Thus, any pre-vaccination medical screening must be “job-related and consistent with business necessity.” Employers should proceed with caution in using any pre-vaccination screenings and should consult with counsel to determine if the screening meets the test for “job-related and consistent with business necessity.” 
  • Asking for proof of receipt of a COVID-19 vaccination is not considered a disability-related inquiry as there may be many reasons why an employee has not been vaccinated. Accordingly, asking employees for proof of a COVID-19 vaccination does not violate the ADA. 
  • If an employer requires vaccinations and an employee responds that they are unable to receive the vaccination due to a disability, then the employer must show that the unvaccinated employee would pose a direct threat due to “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." This requires a case-by-case analysis of each employers’ and employees’ circumstances to determine best next steps. 
  • If an employer requires vaccinations and an employee objects due to sincerely held religious beliefs, then the employer must provide a reasonable accommodation for the religious beliefs unless such accommodation would pose undue hardship.   
  • If an employer cannot provide a reasonable accommodation because an employee objects to vaccination due to disability or sincerely held religious beliefs, and there is no reasonable accommodation possible, then an employer may exclude the employee from the workplace.  Employers should not jump to automatic termination in this situation. Employers must consider if any other rights under the EEO laws or federal, state or local authorities apply before terminating the employee. 
  • While the COVID-19 vaccine provides cause for excitement, employers must remember their obligations regarding employee health and medical information. Our attorneys continue to follow the latest COVID-19 guidance and are prepared to assist with tricky situations as they arise. 

    Julio R. Olaya Jr., an associate at the firm, focuses his practice on litigation matters related to medical malpractice and labor and employment.

    Disclaimer: The information included here is provided for general informational purposes only and should not be a substitute for legal advice nor is it intended to be a substitute for legal counsel. For more information or if you have further questions, please contact one of our Attorneys.

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