As of April 19, 2021, every person in the United States age 16 and over is eligible for a COVID-19 vaccination. With vaccinations now available to most workers, employers may be considering a variety of actions, such as requiring employees to be vaccinated, asking employees if they have been vaccinated, or offering incentives to encourage employees to get vaccinated. The Equal Employment Opportunity Commission (EEOC) has issued guidance about how the COVID-19 vaccination interacts with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). (EEOC Technical Assistance Publication “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.)
For employers that are covered by the ADA and Title VII, making vaccinations mandatory presents a number of legal and practical issues. These laws do not prohibit employers from requiring employees to be vaccinated. However, under the ADA, if an employee indicates that he or she is unable to be vaccinated due to a disability, the employer must determine whether the unvaccinated employee would pose a direct threat to the health or safety of the individual or others in the workplace. If so, the employer must determine whether there is a reasonable accommodation that would eliminate or reduce the direct threat without posing an undue hardship. If the direct threat cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace.
Similarly, under Title VII, an employer must reasonably accommodate an employee who claims to be unable to be vaccinated due to a sincerely held religious belief, practice, or observance, unless accommodation would pose an undue hardship. If there is no reasonable accommodation possible, the employee may be excluded from the workplace.
Potential accommodations for an employee who is unable to be vaccinated due to disability or religious belief might include working remotely, job modification, change of work location or schedule, reassignment, and/or leave of absence. The EEOC cautions that, if an employer determines that no reasonable accommodation is possible and an employee is excluded from the workplace, this does not mean that the employer may automatically terminate the employee. The employer would need to determine if any other rights apply under federal and state equal employment opportunity laws or other laws.
Some employers may want to ascertain whether employees have been vaccinated, even if they do not require vaccination. Asking employees whether they have been vaccinated is not a disability-related inquiry and so is permissible under the ADA. However, any follow-up questions, such as asking why an employee has not been vaccinated, may elicit information about a disability and as such is considered a disability-related inquiry subject to the ADA requirement that such inquiries be job-related and consistent with business necessity. The EEOC recommends that, if an employer intends to ask employees about their vaccination status, the employer should tell the employees not to provide any medical information.
Many employers are considering offering incentives for employees to get vaccinated, such as paid time off, cash bonuses, or gift cards. Because the EEOC recently proposed and then withdrew regulations about incentives for participation in wellness programs, the EEOC’s position on offering incentives for employees to get vaccinated is unclear. Incentive programs could also implicate the ADA and Title VII if employees who are unable to get vaccinated due to disability or religious belief are excluded from participation. Fortunately, the EEOC has indicated that it intends to update its COVID-19 guidance to address offering vaccination incentives to employees.
In the meantime, President Biden has called on all employers to provide paid time off for employees to get vaccinated and to recover from any after-effects of the vaccine and has announced a paid leave tax credit for employers with less than 500 employees. Therefore, it is clear that employers can at least provide employees paid time off for the time it takes to get vaccinated and for any time needed to recuperate from the vaccination.
As has been the case throughout the pandemic, employers should check the EEOC’s website frequently for updates and additional guidance concerning COVID-related topics, including considerations relating to vaccination.