Mandatory COVID Vaccination Policies in the Workplace: What Employers Must Know

The long-awaited COVID-19 vaccinations are finally available, and the inoculation process has begun in the United States. Employers, with the anticipation of widespread availability of the vaccine in the coming months, are beginning to inquire as to whether they can mandate employee vaccinations as a condition of employment. On Dec. 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) released informative and much-needed guidance on this topic, including addressing attendant and inevitable issues and concerns. This Holland & Knight alert addresses the key components of the EEOC's guidance.

Vaccination Policy

As a threshold matter, employers are permitted to implement COVID-19 vaccination programs for employees and to require that employees receive the vaccination. Such a policy, on its face, is lawful under federal law. However, notwithstanding the lawful nature of such a blanket policy, employers must carefully navigate several federal statutes when 1) employers, themselves, provide the vaccinations, or 2) when employees request exemptions from the employer's vaccination policy based upon disability and/or sincerely held religious beliefs. Employers should be mindful that state or local labor laws may also restrict an employer's vaccination programs and/or policies when it comes to unvaccinated employees.

Employer-Provided Vaccination Considerations

Americans with Disabilities Act

The Americans with Disabilities Act (ADA) generally precludes employers from conducting "medical examinations" of employees. A medical examination is an exam designed to solicit information about an individual's physical or mental impairments or health. The EEOC, in its recent guidance, explained that providing a vaccination is not a medical examination under the ADA because a vaccine does not seek information about an individual's impairments or their current health status.

However, employers still need to proceed with caution because, even though the administration of the actual vaccine is not a medical examination, pre-vaccination screening questionnaires may implicate either the ADA's prohibition on disability-related inquiries or the Genetic Information Nondiscrimination Act (GINA) (more below). The EEOC made clear that pre-vaccination questionnaires are subject to the ADA standards for disability-related inquiries and that the same questionnaires are, by their very nature, likely to elicit information about a disability. Therefore, it is imperative that employers demonstrate that the disability-related screening inquiries are "job-related and consistent with business necessity." Employers can meet this showing only if, based on objective evidence, the employer can demonstrate that the employee is a direct threat to the health or safety of themselves or others. (The direct threat standard is discussed in more detail below.) This requirement is obviated where employees receive their vaccinations from a third party with whom the employer does not have a contract (e.g., a pharmacy or their private healthcare provider). If an employer contracts with a medical services provider to come to the workplace to administer vaccinations, that would qualify as an employer-provided vaccination subject to ADA protections.

Genetic Information Nondiscrimination Act

The EEOC also made clear in its guidance that pre-vaccination questions may also implicate Title II of GINA. GINA prohibits employers from soliciting information about employees' genetic information, which is defined as information about an individual's genetic tests, genetic tests of family members, family medical history, use of genetic services or participation in clinical research trials that include genetic services, and genetic information about a fetus carried by the individual or a family member. If the pre-vaccination questions do not implicate any of the above, then GINA is not a concern for employers.

However, it is likely that questionnaires may ask about genetic information, with family medical history the most likely example. Unlike disability-related inquiries under ADA, there is no exception to the prohibition against the involuntary solicitation of genetic information under GINA. Accordingly, if a vaccine questionnaire solicits genetic information, employers may consider having employees receive their vaccination outside the workplace without the involvement of the employer. Similar to the disability-related screening inquiry implications of the ADA, employers do not need to worry about GINA if the vaccine is administered by a third party with whom the employer does not have a contract.

Under both the ADA and GINA, the safest route for employers will be to require that employees receive a vaccine from their primary healthcare provider or a neighborhood pharmacy, with the employees then required to provide proof of inoculation to their employers. If employers choose to go this route, there is no prohibition on asking employees to provide proof of vaccination.

Disability and Religious Exemptions

Employers will likely confront a situation in which an employee requests a waiver to the vaccination requirement due to disability (e.g., immunocompromised) or due to a "sincerely held" religious belief against vaccinations. (The EEOC cautions employers to not probe deeply into religious beliefs because the definition of religion is quite broad and there is a presumption that the belief is "sincerely held.") Employers are permitted, under the ADA, to require that employees not pose "a direct threat to the health or safety of individuals in the workplace." If an employer wishes to end an employee's employment because they do not want to take the vaccine due to either disability concerns or religious convictions, the employer will need to establish that the unvaccinated employee would pose a direct threat to others in the workplace. A direct threat is defined as "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation."

Accordingly, employers may not have a blanket policy that precludes further employment for employees who do not receive a COVID vaccine. Instead, employers must first ascertain whether the unvaccinated employee would constitute a direct threat. This requires a case-by-case analysis of four distinct factors: 1) the duration of the risk, 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. Only under the totality of the circumstances may the employer conclude that an employee is a direct threat.

If an employer concludes that an unvaccinated employee is a direct threat, the employer must engage in an interactive process with the employee to ascertain whether a reasonable accommodation is possible to alleviate the threat. If a reasonable accommodation is not possible, employers may only then terminate employment (assuming there is no violation of state or local labor laws).

Next Steps

Employers should continue to monitor the EEOC's guidance as well as the guidance from the Occupational Safety and Health Administration (OSHA). For more information or assistance on this topic or with any other COVID-19 matters specific to your organization, please contact the authors or other members of Holland & Knight's Labor, Employment and Benefits Group.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the author of this alert for timely advice.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.