4 takeaways for HR from the EEOC guidance on COVID-19 vaccines

The agency says employers can require employees to get the vaccine.
By: | December 17, 2020 • 2 min read
(Photo by Joe Raedle/Getty Images)

With the first doses of the COVID-19 vaccine being administered in America, employers are wondering what their role is when it comes to vaccination and what they can and can’t do. Now they have some clarification, as the Equal Employment Opportunity Commission this week released guidance for organizations and the COVID-19 vaccine.

Here are some highlights of the guidance, published Wednesday.

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Yes, employers can mandate the COVID-19 vaccine—with some exceptions. The EEOC essentially says employers can require that employees get vaccinated as a condition of going to work. However, they must be prepared to exempt employees with disabilities and religious objections. In those cases, an employer must offer a reasonable accommodation to the employee—such as working remotely or being reassigned—as long as the accommodation doesn’t cause “undue hardship” for the employer.

Related: Employers can legally require COVID vaccinesbut will they?

Employers may generally request that the employees provide supporting documentation to support exemption requests for disability or religious reasons.

Related: HR’s next big job: Convincing employees to get COVID vaccines

Employers can exclude unvaccinated employees from the workplace. If no reasonable accommodation is possible and the employee is unable to be vaccinated, the EEOC states that the employer may “exclude the employee from the workplace.” The EEOC notes “this does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state and local authorities.”

Employers can ask employees to show proof of receipt of a COVID-19 vaccination. Employees receiving a COVID-19 vaccine approved or authorized by the FDA will not be considered a “medical examination” for purposes of the Americans with Disabilities Act, meaning employers can ask employees for proof of a vaccine. (The ADA places limits on employers’ ability to make workers take medical tests or otherwise seek out medical information about them.) However, employers must be cautious about pre-screening vaccination questions, which may violate the ADA’s provision on disability-related inquiries, “which are inquiries likely to elicit information about a disability,” the EEOC said in its guidance. “If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are ‘job-related and consistent with business necessity.’”

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Asking about vaccines doesn’t trigger GINA. The EEOC says that employers that administer a COVID-19 vaccine or ask employees to show they’ve been vaccinated aren’t triggering the Genetic Information Nondiscrimination Act, which shields people from workplace bias based on their genetic information. However, pre-screening medical questions that seek genetic information before administering a vaccine could implicate GINA. “If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA,” the EEOC says.

The complete guidance can be found here.

Kathryn Mayer is HRE’s benefits editor and chair of the Health & Benefits Leadership Conference. She has covered benefits for the better part of a decade, and her stories have won multiple awards, including a Jesse H. Neal Award and honors from the American Society of Business Publication Editors and the National Federation of Press Women. She holds bachelor’s and master’s degrees from the University of Denver. She can be reached at kmayer@lrp.com.

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