EEOC Guidance Addresses Requiring Proof of COVID-19 Vaccination

Many organizations still have employees working remotely during the pandemic, but this is not feasible in every industry. If you are running a fully or partially staffed office or facility, you may be wondering whether you are legally allowed to require on-site workers to prove they have received a COVID-19 vaccination when it is available to them.

In mid-December, the Equal Employment Opportunity Commission (EEOC) issued guidance on this topic in the form of updated questions and answers on its website. Based on the guidance that is available now, here are some important points regarding COVID-19 proof-of-vaccination policies:

You may require most employees to provide proof they have been vaccinated. However, two notable exceptions must apply. First, you need to exempt employees who are unable to receive a vaccine because of a disability. The EEOC guidance explains: “… employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability” that could potentially create conflicts with the Americans with Disabilities Act.

Second, you must grant an exception to employees who refuse a vaccination because of a sincerely held religious belief, practice, or observance. The agency does note, “[if] an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.”

Be prepared to explore accommodations for employees who cite one of the exceptions. If an employee claims to be unable to get vaccinated because of a disability or for religious reasons, the EEOC advises employers to assess whether that person poses a “direct threat scenario” to the workplace. If he or she does, you need to engage in a good-faith effort to find an accommodation that allows the employee to work safely on-site.

In cases where you cannot identify a reasonable accommodation, you may legally exclude those employees from the workplace. However, the agency warns that “this does not mean the employer may automatically terminate the worker.”

Be sure to urge employees not to include genetic information. As you may be aware, Title II of the Genetic Information Nondiscrimination Act forbids employers from using genetic data to make employment decisions and severely restricts the acquisition and disclosure of such information. In keeping with these rules, employers should advise employees who provide proof of COVID-19 vaccination to exclude genetic data included in their health care providers’ documentation.

The pandemic continues to drive rapid change in the flexibility and application of many laws and regulations. Consult an employment attorney on the legal implications of any action you are considering regarding COVID-19 vaccinations.

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