Question: Can I require my employees to get the new COVID-19 vaccination when it becomes available?

Answer:  The Equal Employment Opportunity Commission (EEOC) recently issued much-anticipated guidance on the COVID-19 vaccination in the workplace confirming that generally, employers may require employees to get the COVID-19 vaccination as long as the requirement is job-related and consistent with business necessity.  In formulating any vaccination policy, an employer must keep in mind the protections afforded to employees under federal and state law.

In deciding whether to require employees to get COVID-19 vaccinations, employers should assess the potential direct threat to the workplace if employees are not vaccinated, considering the risk level of their specific workplace environment and industry. For instance, if an employer’s customer base is typically high-risk, or if the workplace has already had work-related COVID-19 exposures during the pandemic, then mandating the vaccination for employees may be a prudent way to provide a safe and healthy work environment.

If an employer decides to require the vaccination and an employee refuses, the employer must conduct an individualized assessment to determine if the employee is refusing for a protected reason under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act, or the California Fair Employment and Housing Act (“FEHA”).

For refusals based on a disability, the employer must determine whether an unvaccinated individual 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.”  The employer should review the following 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.

If the employer finds that a direct threat exists, it cannot automatically discharge the employee.  The employer must determine whether a reasonable accommodation is available that would not impose an undue hardship for the employer, such as having the employee work remotely or placing the employee on a leave of absence.

For refusals based on sincerely held religious beliefs, employers must also reasonably accommodate employees unless doing so would pose an undue hardship. Because the definition of religion is broad and protects beliefs with which the employer may be unfamiliar, the EEOC advises employers to assume an employee’s stated religious belief is sincere.

According to the CDC, certain questions should be asked before administering the vaccine to ensure that there is no medical reason that would prevent the employee from receiving the vaccination.  If the employer is administering the vaccination, pre-screening questions it poses may elicit information about an employee’s disability, implicating the ADA’s and FEHA’s provisions on disability-related inquiries.  If the questionnaire asks for genetic information such as the employee’s family medical history, that implicates protections under the Genetic Information Nondiscrimination Act.  Employers should ensure that inquiries are job-related and consistent with business necessity, and should instruct employees not to provide any genetic or disability related information in answering the pre-screening questions.  Employers must also maintain the confidentiality of employees’ responses.

As new information about vaccine efficacy and longevity, distribution, and vaccination plans emerge, it is likely the EEOC and other state or federal agencies will issue additional guidance, or revise guidance to reflect the most current information.  For more information, employers can review the EEOC guidelines regarding the COVID-19 vaccine.