The EEOC Confirms Employers’ Ability to Require Covid-19 Vaccinations

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance to employers about whether and under what circumstances employers could require employees to get vaccinated for COVID-19 as a condition of employment.  In a win for employers, the agency determined that in most cases, employers can request or even require that its employees get vaccinated against Covid-19 without violating any federal civil rights laws.

However, employers will have to take into consideration and make allowances for employees’ sincerely held religious beliefs against vaccination, employees who have disabilities that might prevent them from taking the vaccine, and employees who are pregnant.  Employers should also be mindful of what questions they can ask employees about their health and vaccination status, and how they use the information obtained in response to those questions.  Such information is likely considered private to the employee and should only be shared with those within the employer’s management structure who have a legitimate “need to know.”

In addition, although requesting or requiring employees to get vaccinated will not be considered a “medical examination” under the Americans with Disabilities Act (ADA), to exclude an employee from the workplace because they refuse to get vaccinated “the employer must show that an unvaccinated employee would pose a direct threat due to ‘a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’”  The EEOC further advises that employers should conduct an “individualized assessment” of four factors in determining whether a direct threat exists:  (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm.  “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.” 

Widespread vaccinations of the population may still be months away.  However, employers should start considering now whether they want to “require” vaccinations or whether they simply want to strongly encourage their employees to get vaccinated.