As vaccinations to prevent COVID-19 have become widely available, employers are faced with new questions to effectively manage their workforce. Are employers allowed to make vaccinations mandatory? What if employees object to being vaccinated on religious or disability grounds? On May 28, 2021, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal anti-discrimination laws, issued guidelines regarding vaccinations in the workplace in response to the COVID-19 pandemic. 

Mandatory vaccine policies are permissible

The EEOC stated that federal anti-discrimination laws do not prohibit an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provisions of Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act (ADA). An employer may require employees to provide proof of vaccination. This information is confidential medical information and must be treated as such under the ADA.  

Employers must explore reasonable accommodations for employees who refuse vaccination because of a disability, sincerely held religious belief or pregnancy

Employees who refuse vaccination because of a disability, a sincerely held religious belief or pregnancy may be entitled to a reasonable accommodation if such accommodation does not impose an undue hardship on the company’s operations. Reasonable accommodations may include requiring the employee to wear a face mask, social distance from customers and co-workers, work a modified shift, be periodically tested for COVID-19, be given the opportunity to telework, or accept reassignment. However, an employer may require an employee to be vaccinated if the employee poses a direct threat in the workplace (because the employee is not vaccinated) and there is no reasonable accommodation which would reduce or eliminate the threat.

In determining whether an employee poses a direct threat in the workplace if not vaccinated, an employer must consider: (1) the duration of the risk posed by the employee; (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. The determination that a particular employee poses a direct threat in the workplace should be based on a reasonable medical judgment that relies on the most current medical knowledge about COVID. This may include, for example, the level of community spread at the time of the employer’s assessment. Statements from the CDC provide an important source of current medical knowledge about COVID, and the employee’s health care provider, with the employee’s consent, also may provide useful information about the employee.  Additionally, the assessment of direct threat should take into account the employee’s work environment, such as: whether the employee works alone or with others or works inside or outside; the available ventilation; the frequency and duration of direct interaction the employee typically will have with other employees and/or non-employees; the number of partially or fully-vaccinated individuals already in the workplace; whether other employees are wearing masks or undergoing routine screening testing; and the space available for social distancing. 

Vaccination policies should inform employees that the employer will consider requests for reasonable accommodations 

An employer that creates a COVID-19 vaccination policy requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability, religious belief or pregnancy, on an individualized basis. In general, an employer should not question whether an employee has a sincerely-held religious belief. However, if an employee requests a religious accommodation and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer may we request additional supporting information. 

Vaccination incentives are permissible 

Employers may provide incentives for employees to voluntarily receive a vaccine or provide proof of vaccination. If the employer administers a vaccine itself, the incentive cannot be “so substantial as to be coercive.” This is because vaccinations require individuals to answer disability-related screening questions. A “substantial” incentive could make an employee feel pressured to disclose confidential medical information to his or her employer. The EEOC did not set any threshold regarding what constitutes a “substantial” incentive.