On December 16, the EEOC released new COVID-19 vaccine guidance. As predicted, the new guidance generally allows employers to require employees to receive COVID-19 vaccines. But, as the EEOC explained, employers that require employees to receive COVID-19 vaccines must make exceptions for disabilities and sincerely held religious beliefs, in accordance with the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964.
Here are some highlights from the new EEOC guidance:
- Employers may ask an employee for proof that he or she received a COVID-19 vaccine. But more probing follow-up questions to an unvaccinated employee “may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’”
- If an employer requires all employees to receive a COVID-19 vaccine, and an employee is unable to receive one because of a disability, the employer must show that an unvaccinated employee would pose a direct threat of “significant harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
- The following four factors are used to determine whether a direct threat exists: “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.” The EEOC notes that “a determination that an unvaccinated individual will expose others to the virus at the worksite” could be a direct threat.
- If, after engaging in an interactive process, the employer determines no reasonable accommodation is available, the EEOC provides that “the employer can exclude the employee from physically entering the workplace.” But an employer must still consider whether other rights may apply before making a termination decision.
- If an employee is unable to receive a COVID-19 vaccination due to a sincerely held religious practice or belief, an employer is required to provide a reasonable accommodation unless it would pose an undue hardship.