EEOC’s New Guidance: Develop return-to-Work Plans and Manage Employees through the ‘Second Wave’ of COVID-19

December 21, 2020

As most employers have learned over the course of 2020, managing a workforce through the COVID-19 pandemic can be difficult given many new complexities and updated standards.  As Americans begin to receive the vaccinations approved by the Food & Drug Administration (FDA) under Emergency Use Authorizations (EUAs), employers are confronted with optimism about the future on one hand, but new complexities on the other.  On December 16, the Equal Opportunity Employment Commission (EEOC) issued new guidance regarding the new COVID-19 vaccines and their impact on the workplace in an effort to explain these complexities.   EEOC’s guidance can be found in Section K at this link.  Here is a summary of this new guidance that every employer should know:

• Administering an FDA-approved vaccine is not a medical examination governed by the Americans with Disabilities Act (ADA).  EEOC explains that even where an employer administers a vaccine, “the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not an examination.”  (See §K.1.)  However, employers need to be careful about pre-screening questions that may be considered disability-related inquiries under the ADA, which need to be “job-related and consistent with business necessity.”

• The fact that these vaccines have been approved by EUAs does not impose special standards as compared to other vaccines.

• The Centers for Disease Control & Prevention (CDC) recommend that health care providers screen potential vaccine recipients for medical conditions that would prevent receipt of the vaccine. If an employer administers the vaccine and asks these questions, EEOC instructs that the questions are subject to the standards of the ADA for disability-related inquiries.  (See §K.2.)  Notably, an employer would need to show that such disability-related screening inquiries are “job-related and consistent with business necessity,” which would require the employer to have an objectively reasonable belief that an employee who does not answer the questions and does not receive the vaccine, would pose a direct threat to herself/himself and others.  There are two exceptions here:  (1) if a vaccination program is voluntary, and the obligation to answers the questions is also voluntary; and (2) where a third party not under contact with the employer administers the vaccine, the third party’s screening questions are not governed by the ADA.

• An employer may ask an employee for proof of vaccination without triggering a disability-related inquiry covered by the ADA.  However, follow-up questions by the employer about the reasons why an employee did not receive the vaccine have to be job-related and consistent with business necessity.  (See §K.3.)

• Mandatory vaccination programs:  Mandatory vaccination programs may be conducted by employers, but they are subject to a variety of requirements and exemptions.  An employer can impose a vaccination requirement as part of a safety-based qualification standard, but the employer needs to account for employees with disabilities who would be screened out of the workplace by the standard.  Where this occurs, the employer must show that an unvaccinated employee (a) poses a direct threat, (b) due to a “significant risk of substantial harm to the health and safety of the individual or others (c) that cannot be eliminated or reduced by reasonable accommodations.”  (See §K.5.)  Assessment of the harm is determined by a four-part analysis of its duration, nature and severity, likelihood and imminence.

• If an employer can make the showing, it then begins the interactive process of accommodating the disability unless it presents undue hardship to the employer.  This is the usual ADA accommodation process.  Accommodations can take many forms including remote work arrangements and leave provided by federal law, the employer’s leave policy or state/local law.

• A mandatory vaccination program must also have an exemption per Title VII for sincerely held religious beliefs, practices or observances that would make employees unable to receive a vaccine, unless the exemption or accommodation presents an undue hardship to the employer.  EEOC cautions in §K.5. of the guidance that employers should assume the sincerity of a claimed religious belief even if the belief is unfamiliar, though it can request more information when it has an objective question about the religious nature of the belief.

Many of the employment issues posed by COVID-19 are complex, and the rules relating to vaccines are no exception.  For more information or to discuss how these rules impact your company, please contact us to schedule a private no-obligation consultation.