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EEOC Issues Vaccine Guidance

    February 27, 2021

    On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance related to how the COVID-19 vaccine (and an employer’s decision to require the vaccine) interacts with various laws enforced by the EEOC. The EEOC enforces three laws potentially affecting an employer’s decision to require the COVID-19 vaccine: Title VII; the Americans with Disabilities Act (ADA); and the Genetic Information Nondiscrimination Act (GINA). While none of these laws specifically prohibit an employer from requiring employees to be vaccinated, they may require a particular analysis and findings in the event an employee objects to the vaccine.

    Americans with Disabilities Act

    Under the ADA, an employer is prevented from asking disability-related questions unless the questions are “job-related and consistent with business necessity.” Therefore, simply asking an employee if they have been vaccinated or requiring them to supply proof of a vaccine is not subject to the ADA standard, as it simply requires a “yes/no” answer or the production of a document. However, if the employer further inquires as to why the employee was not vaccinated, the employee could respond with medical information, making this inquiry subject to the higher “job-related” standard.

    How does an employer prove its question meets the “job-related” standard? An employer must “have a reasonable belief, based on objective evidence, that an employee who does not answer the question and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” Employers who have employees working in settings where employees interact with the public and/or are unable to social distance will likely be able to meet this standard, while employers who have successfully had employees working from home will be less likely be able to meet it. However, it is a fact-specific inquiry based on the evaluation of four factors: 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.

    What if an employee states that they cannot get the vaccine because they have a medical condition? In this situation, an employer will have to respond in the same way it responds to other requests for an accommodation, i.e., by engaging in the interactive process to determine the next step. In order to deny the employee’s request for non-compliance with the employer’s vaccine policy, the employer will need to show that 1) no accommodation is available given the nature of the employer’s workforce and the employee’s position; or, 2) that the employee constitutes a direct threat (see the four factors above when considering the “direct threat” defense) and no accommodation is available; or, 3) that the employee’s request and subsequent accommodation constitutes an undue hardship for the employer (e.g., it is too expensive and/or difficult to provide the accommodation). As with all requests for accommodation (see below), employers should consider whether requiring non-vaccinated employees to comply with other infection control procedures, such as wearing a mask and social distancing or working from home is an effective accommodation.

    Title VII

    What if an employee states that they cannot be vaccinated due to a religious belief, practice or observance? Again, similar to the process under the ADA, the employer will be required to consider each of these requests on a case-by-case basis. As part of that process, the employer will first need to determine if an accommodation is necessary or required. Note that an employer may request supporting information from the employee concerning the employee’s sincerely held religious belief if the employer has an objective basis for questioning the religious nature or sincerity of the employee’s belief. In the event no accommodation is available or the accommodation causes an undue hardship, the accommodation request may be denied. Note that Title VII does not require an employer to accommodate personal or political beliefs about the vaccine.

    Employers should be aware that both Title VII and Illinois state law also protect pregnancy. Therefore, if a pregnant woman states that she cannot have the vaccine, the employer will have to consider accommodation.


    Does an employer violate GINA if it requires an employee to be vaccinated? Likely not. An employer violates GINA if it asks employees to disclose genetic information about themselves or family members. If an employee is required to obtain a vaccine elsewhere and simply provide proof, genetic information is likely not implicated. (Employers may want to include a GINA disclaimer in their vaccine policies and forms so that such information is not disclosed incidentally to proof of the vaccine).

    Note that the answers to all of these questions may differ if an employer is running its own vaccine clinic (as opposed to requiring the employee to get the vaccine from their own healthcare provider and provide proof, previously discussed in this article).

    Employers who are considering requiring the vaccine should plan to attend “The COVID-19 Vaccine: Employer Options” program on January 28, 2020. This webinar will be presented by the HR Source Legal Department and explain more fully the EEOC’s guidance as well as numerous other laws and issues that could affect an employer’s decision with regard to the vaccine. Members should also watch for sample policies and forms related to the vaccine in upcoming weeks. In the meantime, please take time to fully review the EEOC Guidance.