EEOC Provides Guidance on Employers’ Ability to Mandate COVID Vaccinations
Today, the EEOC updated its COVID-19 guidance for employers, specifically on issues surrounding the circumstances under which employers may mandate that employees be vaccinated for COVID-19 (once the vaccines become more widely available). The EEOC’s guidance is about as clear as mud unfortunately, and most employers will not find it overly helpful in trying to decide on whether or not to mandate employee vaccinations (balancing the need to provide a safe workplace against EEO risks and employee morale issues associated with mandatory vaccine policies). For starters, the EEOC guidance rather deliberately fails to include any Q&A that directly and clearly answers the question, “Can employers require all employees to be vaccinated for COVID-19 as a condition of employment or continued employment?” Instead, the EEOC guidance focuses on issues surrounding exceptions employers must consider IF they adopt a mandatory vaccination policy. This certainly implies that a mandatory vaccination policy does not, on its face, violate EEO laws, which is consistent with the EEOC’s prior guidance on the flu vaccine. However, the guidance gets very muddy from there . . . .
First, the EEOC notes that COVID-19 vaccines are currently only being approved through the Emergency Use Authorization process of the FDA, rather than the normal approval process. This emergency authorization requires the FDA to inform all people considering the vaccine of the benefits and risks and to inform them that they have the option of declining the vaccine. With that said, it is unclear how an employer can mandate that employees receive a vaccine that has emergency use authorization only.
Second, the EEOC makes clear that employers may have to make exceptions from any mandatory vaccine policy for employees who have disabilities that prevent them from getting the vaccine and/or for employees who object to vaccinations based on sincerely held religious beliefs. If an employee refuses vaccination for either reason, it does not mean the employer can automatically exclude the employee from the workplace (or terminate/refuse to hire the employee). Instead, the employer must engage in a muddied analysis of whether the employee’s lack of vaccination will pose a direct threat to the workplace and whether there are other reasonable accommodations that may be made to mitigate against that threat (i.e. allowing the employee to work remotely or in some isolated space away from others). The EEOC describes this analysis as individualized and lacking bright line, one-sized fits all answers. That pretty much guarantees that an employer who concludes a direct threat exists that cannot be reasonably accommodated will get sued and accused of coming up with the wrong answer on these issues.
Third, the EEOC notes that mandatory vaccination policies could involve disability-related inquiries in the event there is pre-screening of employees to ensure they are not at risk from getting the vaccine. This could, but may not, raise GINA concerns and confidentiality of medical information concerns.
Sufficed to say, there are a lot of pitfalls associated with mandatory vaccination policies. It remains to be seen whether OSHA and/or Cal/OSHA and/or the CDC will issue additional guidance for employers to help navigate these issues. California’s DFEH also has not yet weighed in on the mandatory vaccine issue. For now, the vaccine remains widely unavailable so employers should monitor for further guidance on this important issue. Employers may of course safely encourage employees to be vaccinated, instead of requiring it. California employers should also be aware that if they begin requiring vaccines as a condition of employment, they likely will have to pay for the cost of the vaccines and the time employees spend getting vaccinated.
The EEOC’s guidance is available here (see Section K in particular.)