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EEOC Issues New COVID-19 Vaccination Guidance

December 18, 2020

The EEOC recently updated its existing COVID-19 guidance to address the issue of mandatory vaccination policies.  Overall, the EEOC took the position that employers can implement mandatory COVID-19 vaccine policies but must accommodate, absent an undue hardship, employees who object to receiving the vaccine based on a disability issue or a sincerely held religious belief.  If an employee with such an objection cannot be vaccinated, an employer can exclude the employee from the workplace if the presence of the unvaccinated employee presents a direct threat to the health and safety of others that cannot be reduced or eliminated through the accommodation process.  An employer may not automatically discharge such an excluded employee, however, and it must consider whether other forms of accommodation, such as remote work, can be provided.  As issues of accommodation, undue hardship, and the direct threat analysis present challenging legal issues, employers should tread carefully in handling employees who object to receiving a vaccine as part of a mandatory program.

The other aspects of the updated guidance focused on pre-screening questions and proof of receipt and genetic information protections.

  • Pre-Screening Questions – In its guidance, the EEOC clarified that, while the vaccination is not a medical examination, any pre-screening questions may be regarded as disability-related inquiries under the Americans with Disabilities Act (ADA). Any employers who administer vaccinations will need to ensure that any pre-screening questions are job-related and consistent with business necessity.  This provision only applies to employer-provided vaccinations; vaccinations received from third-party health care providers do not face the same restrictions on pre-screening questions.
  • Proof of Vaccination – Employers may request proof of receipt of a COVID-19 vaccination, but any further questions beyond the simple proof are evaluated under the above ADA standard. Employers should be sure to properly treat and secure any medical information that may be included with a proof of receipt.
  • Genetic Information Protections – Employers should also be aware of requirements under the Genetic Information Nondiscrimination Act (GINA). Under GINA, if an employer is administering the vaccine without the use of a third party, it cannot seek genetic information in any pre-screening inquiries, such as asking for family medical histories. 

As this new guidance makes clear, mandatory vaccination requirements require consideration of numerous legal issues.  There are myriad practical and human resources angles to evaluate.  If you have questions about this or any other workforce issue, please do not hesitate to contact your relationship attorney or one of Honigman’s Labor and Employment attorneys.

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