JUST A SHOT IN THE ARM – PART 2: The EEOC Weighs In

Client Alerts / December 2020

Last week, we issued an update in response to the burning question of whether or not employers may require employees to get the COVID-19 vaccine once it becomes more widely available.  You can find it on the CH& COVID-19 Resources page here.

Just in time for the holidays, the EEOC has weighed in with guidance on the topic. You can find the full document on the EEOC web site here: EEOC Guidance (see Section K regarding vaccinations specifically). We are happy to report that our predictions on how the EEOC would view rules mandating that employees get vaccinated before returning to work were largely correct. One point we got wrong: The EEOC has clarified that a vaccination itself is not a “medical examination” – although pre-screening questions may be. However, that distinction does not change the bottom line: Employers may require employees to get the COVID-19 vaccine as a “qualification standard” so that the individual will not pose a “direct threat to the health or safety of individuals in the workplace.”

But this, of course, is not the end of the inquiry. Just like with any other safety standard, if the vaccination requirement screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated 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.” Making this determination involves an individualized assessment of four 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.

And even if you reach the conclusion that the unvaccinated individual poses a “direct threat” to the workplace, jumping to immediate termination of the individual is not the answer. As we advised in our original update, employers must exhaust reasonable accommodation options, including leaves of absence, remote working, PPE, to name a few. This accommodation requirement would also apply to persons with religious objections to vaccinations. (See question K.6. in the Guidance.)

Ultimately, our advice remains the same: Although mandatory vaccination policies are permitted by the EEOC, the better approach in our view is to encourage and incentivize employees to get vaccinated. As my Mom used to say, “You catch more flies with honey,” a principle that applies here well.

Whatever direction you take once the vaccine becomes available, involve your employment counsel to ensure compliance with all applicable laws. We’re here to help.  Happy Holidays. Stay safe and healthy, and cheers to a productive new year.

Information contained in this alert is for general information purposes only. It should not be considered as legal advice or the sole source of information when analyzing and resolving a legal issue. If you have specific questions regarding your particular circumstances, please do not hesitate to contact your CH& counsel.