*This article was originally published as a Legal Alert on December 17, 2020.

With the COVID-19 vaccine becoming available to some and just around the corner for others, the question on many employers’ (and employees’) minds is whether they can (or should) mandate employees be vaccinated as a condition of employment. The Equal Employment Opportunity Commission (“EEOC”) published important new guidance yesterday concerning an employer’s right to require employees to receive a COVID-19 vaccine once it becomes available. The new guidance is available on the EEOC’s website under the heading “Vaccinations.” While the guidance arguably changes little in the state of the law, it does provide some clarification on several key points:

Employers Can Require COVID-19 Vaccines in Most Instances. Although the EEOC stops just short of saying so explicitly, the strong implication from its guidance is that employers generally can require employees to receive a COVID-19 vaccine, though this is not an unfettered right. Here is what the EEOC has to say, which of course addresses potential disability and religious exceptions:

K.5. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability? (12/16/20)

The [Americans with Disabilities Act (“ADA”)] allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, 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.” 29 C.F.R. 1630.2(r). . . .

. . . .

K.6. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

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 EEOC’s guidance implies that an employer can require a COVID-19 vaccine unless the employee is entitled to a reasonable accommodation under the ADA or Title VII. Please see our previous alert for more information about mandatory vaccine requirements, including a more complete discussion of an employee’s ability to refuse a vaccine under the ADA and religious-accommodation laws. Please also be aware of state-specific restrictions, such as Oregon’s rule against mandatory vaccines for health care employees.

Under Some Circumstances, Employees Can Be Excluded from the Workplace if They Do Not Receive the Vaccine. The EEOC states quite clearly that employees who lawfully refuse the COVID-19 vaccine because of a disability or religious belief can be excluded from the workplace, but only if there is no other accommodation that would allow them to return to work. However, the EEOC cautions that this does not necessarily entitle the employer to terminate the employee: as always, it is critical that employers engage in the interactive process and explore possible accommodations before terminating an employee.

Mandatory Vaccines Are Not “Medical Examinations.” The ADA and many state disability laws prohibit employers from requiring employees to undergo “medical examinations” unless they are job-related and consistent with business necessity. The new EEOC guidance makes clear that requiring a COVID-19 vaccine is distinct from requiring a medical examination because the vaccine requirement does not “seek[] information about an individual’s impairments or current health status.” Likewise, requiring an employee to provide proof of a COVID-19 vaccine is not a prohibited “medical examination” or “medical inquiry,” which is judged under the same standard.

However, the EEOC cautions that pre-screening vaccination questions (e.g., questions about the employee’s medical history that may be asked in connection with vaccine administration) may qualify as “medical examinations” and thus require the employer to satisfy the job-related/ business necessity test if the employer administers the vaccine to employees.

Realistically, we are likely months away from non-healthcare employees being able to acquire a COVID-19 vaccine. This means that employers should use the time they have now to carefully evaluate whether and how to implement a mandatory vaccine policy, and to consider, ahead of time, potential accommodations for those employees who may be eligible for exemptions and how they are going to navigate those situations.

If you have any questions, please contact us.