FOLLOW-UP: Employer-Mandated Vaccines – Legal?

Posted December 20, 2020

On December 16, 2020, the EEOC issued updated guidance on how a COVID-19 vaccination interacts with the legal requirements of the ADA, Title VII, and the Genetic Information Nondiscrimination Act (GINA). https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

The high-level takeaways from the guidance are:

  1. Employers are legally permitted to mandate the vaccine, provided they make reasonable accommodations for employees who present with disabilities or sincerely held religious beliefs (see 12/7/20 email below);
  2. Terminating an employee who cannot get the vaccine due to a disability or religious objection should be the absolute last resort; employers must first consider other options, such as telework or a leave of absence.
  3. The COVID-19 vaccine is not a prohibited medical examination in an of itself, but pre-vaccination medical screening questions asked in connection with an employer-administered vaccine that are likely to elicit medical information about an employee’s disability can only be asked if the questions are “job-related and consistent with medical necessity.” Employers can avoid this issue by not administering the vaccine and instead require employees to be vaccinated by their own medical providers or by making the vaccination voluntary.
  4. Requiring an employee to provide proof of a COVID-19 vaccination does not amount to a prohibited disability-related inquiry, provided the proof does not disclose medical/genetic information about the employee.

An employer-mandated vaccination program, although legal, raises thorny considerations, including wage and hour, potential for workplace conflict, and other logistical complications. Tread carefully and seek legal counsel if your organization opts to mandate the vaccine.

On December 16, 2020, the EEOC issued updated guidance (attached) on how a COVID-19 vaccination interacts with the legal requirements of the ADA, Title VII, and the Genetic Information Nondiscrimination Act (GINA). The high-level takeaways from the guidance are: 1. Employers are legally permitted to mandate the vaccine, provided they make reasonable accommodations for employees who present with disabilities or sincerely held religious beliefs (see 12/7/20 email below); 2. Terminating an employee who cannot get the vaccine due to a disability or religious objection should be the absolute last resort; employers must first consider other options, such as telework or a leave of absence. 3. The COVID-19 vaccine is not a prohibited medical examination in an of itself, but pre-vaccination medical screening questions asked in connection with an employer-administered vaccine that are likely to elicit medical information about an employee’s disability can only be asked if the questions are “job-related and consistent with medical necessity.” Employers can avoid this issue by not administering the vaccine and instead require employees to be vaccinated by their own medical providers or by making the vaccination voluntary. 4. Requiring an employee to provide proof of a COVID-19 vaccination does not amount to a prohibited disability-related inquiry, provided the proof does not disclose medical/genetic information about the employee. An employer-mandated vaccination program, although legal, raises thorny considerations, including wage and hour, potential for workplace conflict, and other logistical complications. Tread carefully and seek legal counsel if your organization opts to mandate the vaccine.