EEOC Issues New Guidance on COVID-19 Vaccinations for Employees: ADA, Title VII, and GINA Considerations

December 23, 2020

Publication| Labor & Employment

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued guidance for employers regarding COVID-19 vaccine policies and their interplay with various federal equal employment opportunity laws.

According to the EEOC, under the Americans With Disabilities Act, employers with mandatory COVID-19 vaccination requirements cannot automatically exclude from the worksite an employee who refuses to receive a vaccination because of a disability.  Rather, an employer must engage in an interactive process with the employee to identify workplace accommodation options that do not constitute an undue hardship.  If the employee cannot be vaccinated for disability-related reasons, the employer must prove that the unvaccinated employee would pose a “direct threat” to the workplace before excluding the employee.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  

Further, pursuant to the EEOC guidance, once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.

The guidance also provides that if an employee cannot get vaccinated for COVID-19 because of a disability or a sincerely held religious belief, practice, or observance, and the employer cannot exempt or provide a reasonable accommodation to the employee that would allow him or her to continue working at the worksite, then it would be lawful for the employer to exclude the employee from the workplace.  However, this does not mean the employer may automatically terminate the worker.  When an accommodation is requested for disability or religious reasons, the employer needs to continue to engage in the interactive process before considering termination.  For example, if an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations such as performing the current position remotely or taking an unpaid leave.  According to the EEOC, “some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act (“FFCRA”), under the FMLA, or under the employer’s policies.”  Thus, employers will also need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. 

Notably, the FFCRA expires on December 31, 2020, with no probable extension; as such, as of January 1, 2021, employers are no longer required to provide FFCRA leave.  However, those eligible employers who choose to provide leave consistent with FFCRA terms can continue to get a federal tax credit for such leave through March 31, 2021 under the new coronavirus relief bill if it is signed into law.

Finally, the EEOC noted that pre-vaccination screenings by employers or third parties contracting with employers that ask about genetic information may violate the Genetic Information Nondiscrimination Act (GINA).  Pursuant to the guidance, if an employer requires employees to provide proof that they have received a COVID-19 vaccine from their healthcare provider, “the employer may want to warn the employee not to provide genetic information as part of the proof.”  The EEOC guidance provides that as long as an employer provides this warning, any information received in response would be considered inadvertent and not unlawful under GINA.

Employers should familiarize themselves with the EEOC’s new guidance before implementing COVID-19 vaccination policies.  The EEOC guidance can be found HERE

If you have any questions, please contact an RLF employment attorney.

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