Five Best Practices Employers Should Follow for COVID-19 Vaccinations, Based on New EEOC Guidance

The EEOC has released revised COVID-19 guidance on whether an employer may require that an employee receive a COVID-19 vaccine. In short, as long as the employer takes certain steps to avoid running afoul of various equal employment opportunity laws, such as the Americans with Disabilities Act (ADA) and Tile VII of the Civil Rights Act, a business may encourage or require an employee to get vaccinated as a condition of employment.

Based on the EEOC guidance, employers should take measures to ensure that any policies relating to the COVID-19 vaccine comply with the ADA, including the following considerations:

  • Exemptions from Mandatory Vaccination Programs – In adopting a mandatory vaccination policy, employers should ensure that potential exemptions are available for employees who may refuse to be vaccinated on a protected basis under the ADA, or for religious objections.

  • Pre-Vaccination Medical Screening – In rolling out a vaccine policy, administering the vaccine, or requesting proof of vaccination, the medical screening questions and any disability-related information requested and collected must be considered “job-related and consistent with business necessity.”

In addition, any “disability-related” screening questions asked by the employer or a contractor on the employer’s behalf, should be “job-related and consistent with business necessity.” However, the EEOC’s guidance suggests this standard may not apply if (a) the vaccination requirement is voluntary or (b) the vaccination is being provided by a third party that is not associated with or contracted to work with the employer.

  • Reasonable Accommodations - If an employee refuses a vaccine because of an underlying disability or because of a religious belief, EEOC guidelines require the employer to provide these individuals with a reasonable accommodation or exempt them from the vaccination requirement altogether. Where this would not be possible given the specific circumstances of the workplace, the employer should conduct a case-by-case analysis to determine whether this individual poses a “direct threat” to the workplace health and safety by being unvaccinated, and engage in a flexible, interactive process with the employee to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).

  • No Retaliation - An employee who requests an accommodation, or chooses not to answer pre-vaccine medical screening questions or provide proof of vaccination, may not be retaliated against, intimidated or threatened.

  • Confidentiality – The ADA requires that the employer keep any employee’s medical information obtained through the course of a vaccination program or policy confidential. Additionally, managers and supervisors should be reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation.

Please be advised this information may change as guidance from public health authorities continues to adapt to most the current information available.

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