The Equal Employment Opportunity Commission (EEOC) issued brief guidelines for how businesses can approach Covid-19 vaccinations with their employees today, December 16, 2020. While these guidelines will undoubtedly change as more information becomes available, the advice is consistent with previous vaccinations (like flu shots).
Jeff Nowak, an employment attorney with Littler, says,
As we might have predicted, EEOC generally has given the green light to employers to require that their employees obtain a Covid-19 vaccine with potential exceptions for ADA and religious accommodations.
Notably, employers who wish to exclude from the workplace those employees who refuse the vaccine will have to show that these individuals pose a direct threat. In the middle of a pandemic, this hurdle is unlikely to be burdensome, but it's hardly a free pass for employers.
To break this down a little bit, here are some of the highlights from the new guidelines.
Mandatory Covid-19 vaccination isn't always possible
Under EEOC guidelines, it's not as simple as just saying, "We'd like everyone to receive a vaccine." The Americans With Disabilities Act (ADA) prohibits employers from performing any medical exams unless they are "job-related and consistent with business necessity." While the vaccine isn't an exam, the medical screening is.
Before you receive a vaccination, you have to answer health screening questions to make sure you can safely receive the vaccination. That makes it a medical screening. As a business owner, you can only require a medical screening if the need for the vaccine is "job-related and consistent with business necessity."
Hospitals can easily demonstrate that the Covid-19 vaccine is job-related and necessary. Your tech startup where everyone works from home probably can't. But if your employees come into the office or interact with clients, you can make a good argument that you are keeping people safe by vaccinating, and therefore it's allowed.
Mandatory vaccination in practical terms
If you can show that Covid-19 is a direct threat to your business, you can make a mandatory vaccine policy, but keep aware of some exceptions, such as religious and disability exceptions.
It's not just the vaccine--it's the screening for the exam. An employee can reject the screening for the vaccine under the Americans With Disability Act, and the EEOC clarifies that
If an employee chooses not to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.
In other words, you cannot retaliate against someone who refuses to undergo the vaccine screening and therefore does not get vaccinated.
If you send employees to their own health care provider or a pharmacy to get a vaccination, you can ask for proof of the vaccination. But do not ask what disability prevented them from getting the vaccination--that's a violation of the Americans With Disabilities Act.
What if someone can't receive a vaccine?
If an employee can't receive a vaccine for reasons related to a disability protected by the ADA, then the employer (if you have 15 or more employees) has to offer a reasonable accommodation. This can include working from home. Remember, each company and each position can be different, so you need to go through the interactive process to determine if there is a reasonable accommodation.
What if someone has religious or other objections to the vaccine?
If an employee has a "sincerely held religious belief, practice, or observance" that prohibits them from receiving the Covid-19 vaccine, then you need to make a reasonable accommodation as long as it doesn't cause an "undue hardship."
Can you terminate an employee who refuses a vaccine when there isn't a reasonable accommodation available?
Yes, the EEOC says, but please consult with a local employment attorney. You need to consider other rights, and termination isn't automatically approved under this situation.