EEOC Conditionally Approves Employer Vaccine Mandates

With the release of the Coronavirus vaccine, questions are arising as to whether employers can require vaccination as a condition of employment. On December 16, the Equal Employment Opportunity Commission (EEOC) issued guidance in question-and-answer format on this topic.

Although the EEOC’s guidance does not directly state that employers may mandate vaccinations, it does answer questions that assume employers have such policies. Among other things, it clarifies that the Americans with Disabilities Act (ADA), which limits employers’ ability to require medical examinations, does not preclude employers from requiring the vaccine since vaccination does not inquire about an employee’s physical or mental health.

That said, the EEOC guidance notes that mandatory vaccinations may implicate other statutes beyond the ADA, including the Genetic Information Nondiscrimination Act and Title VII of the Civil Rights Act.

This means that employers must try to accommodate employees who cite medical disabilities or religious beliefs as reasons not to receive a vaccination. If such employees cannot be accommodated, they may be excluded from the workplace if the employee 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 eliminated or reduced by reasonable accommodation.” Employers, however, may not automatically terminate an excluded employee and must determine whether other laws and protections, such as the possibility of remote work, apply.

NMHC strongly recommends that firms review the EEOC’s questions and answers and consult with counsel if vaccination policies are considered and implemented. Further, firms should recognize that vaccination policies or programs are subject to wide-ranging considerations beyond the EEOC. Firms should also anticipate that the EEOC or other federal, state and local authorities may issue additional guidance or revise its guidance as more information about vaccine efficacy and longevity, distribution and vaccination plans develop.