HR Tip: EEOC weighs in on COVID-19 vaccine

As COVID-19 vaccines become more widely available, employers have difficult decisions to face. What role do they play in the education about and distribution of the vaccine? Do they recommend it or make it mandatory? What do they do if employees refuse to be vaccinated? How do they manage a hybrid workforce when some employees are vaccinated, and others aren't?

The EEOC's recently released guidance, Section K of "What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws" essentially gave a green light, with some caveats, for companies to require employees to get vaccinated against COVID-19.

The key takeaways from the guidance are:

• The COVID-19 is not a medical examination.
• If the vaccines are administered by the employer, any screening inquiries must be job-related and consistent with business necessity. When the vaccine is voluntary and the employee can decide whether to answer the screening questions, "job-related and consistent with business necessity" does not apply. Similarly, if an employee receives an employer-required vaccination from a third-party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA "job-related and consistent with business necessity" would not apply to the pre-vaccination medical screening questions.
• Employers can request proof of the vaccination.
• Disability and religious accommodations must be considered on an individual basis when requested.
• An employer must demonstrate that an employee who seeks a disability or religious accommodation 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 reduced by reasonable accommodation."
• If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker if other laws and rights apply.

While there is good reason companies want to get all of their employees vaccinated, some industries (such as health care) have stronger justifications to require their employees to be vaccinated as well as historical precedent. There are also practical issues to consider, including the staggered schedule of vaccines based on the state's distribution program, union contracts, a distrust of vaccines may mean a significant number of workers will decline the vaccine, the possibility of lawsuits, employee morale, and costs of administering and recordkeeping. Guidance and regulations may also emerge from federal and state authorities.

If the decision is to make the vaccine mandatory, the policy should be written, properly vetted by attorneys, and distributed to all employees. If it is decided to make the vaccine voluntary, consider incentive programs to maximize participation, and have a clear, written policy. In both cases, communication and messaging will be critical.