On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 guidance to address COVID-19 vaccines in the workplace. The EEOC’s guidance implies that a mandatory workplace vaccination program is lawful under the Americans with Disabilities Act (ADA) and the other laws the EEOC administers provided that the employer provides disability and religious exemptions. Nonetheless, employers must consider a number of practical and legal considerations in deciding whether and how to implement a mandatory program in the workplace.

If an employer adopts a mandatory vaccination program, it must be prepared to provide exemptions to employees on the basis of disability and sincerely-held religious beliefs. Both disability and religion are defined broadly under federal law. When an employee requests a disability or religious exemption, the employer must undertake the following analysis:

• If an employee makes a request for an exemption on the basis of disability, in deciding whether to grant the exemption, the employer must determine whether allowing the unvaccinated employee to enter the workplace will create a “direct threat,” and if so, whether that risk can be reduced through reasonable accommodation without creating undue hardship to the business. Direct threat means a significant risk of substantial harm to the employee or others in the workplace. The test is more likely to be met in high-density or high-risk workplaces such as health care, meat processing, or similar environments. Whether it can be met in office environments remains unclear.
• If an employee requests an exemption on the basis of religion, in deciding whether to grant the exemption, the employer must conduct a similar analysis of whether a reasonable accommodation will allow the unvaccinated employee to work on-site without causing undue hardship. (Note that no “direct threat” analysis is required for religious exemptions.)
• If an employee requests a disability or religious exemption, but allowing the employee to work on-site would pose a direct threat or accommodating the employee would create an undue hardship, the employer should not automatically terminate the employee. Instead, the employer should first consider other options such as telework and leave under applicable laws or employer policies.

According to the EEOC, if an employer wishes to administer vaccines to employees itself, or contract with a third party to do so, it must meet a heightened legal standard. This is because screening questions are required to be asked before administration of a COVID-19 vaccine. The EEOC considers such questions to be disability-related inquiries that may only be asked if they are “job-related and consistent with business necessity.” The EEOC explains that to meet this standard, “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” The EEOC states that this heightened need not be met if the employer requires employees to obtain vaccines independently.

Before implementing a mandatory vaccination program, employers should also consider other legal and practical issues. For example, non-exempt (hourly) employees should be paid for the time it takes them to get a mandatory vaccine, and employers in certain states are required to reimburse employees for out-of-pocket costs relating to obtaining a vaccine. Employers should also consider providing leave to employees who experience side effects after receiving the vaccine, and/or as an incentive to receive the vaccine; whether they have collective bargaining obligations with unionized employees; and how they will abide by documentation and recordkeeping requirements (including maintaining medical and vaccination information in a separate confidential file).

Employers, particularly those in office settings, should consider whether encouraging, rather than mandating, vaccines is a better approach. Voluntary programs may result in fewer vaccinated employees, but voluntary programs also may have positive morale benefits, cost savings, and reduced administrative burdens and disputes relating to exemptions. The cost-benefit analysis of a mandatory vaccination program will differ depending on the workplace and industry. For instance, mandating a vaccine for a workplace in an industry with high infection rates may result in significant safety risk reduction, which could outweigh the downsides of a mandatory vaccine.

Significantly, there is presently a very limited supply of COVID-19 vaccines in the United States. Because a mandatory program is futile unless employees have access to the vaccine, most employers are not in a position at this time to implement a mandatory program. Employers should watch closely for developments on vaccine supply as well as further laws and guidance from federal, state, and local authorities.

Additionally, it is important to note that the EEOC’s guidance does not have the force of law. It could be changed or updated by the EEOC, and how the agency and courts will apply the EEOC’s standards remains to be seen. State or local laws also could impose different standards. To mitigate against legal risk, employers adopting mandatory vaccination policies should develop strong business justifications and follow recommendations of all relevant governmental authorities in establishing and administering the program.

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