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EEOC Guidance on COVID-19 Vaccinations


Introduction: The Equal Employment Opportunity Commission

The United States Equal Employment Opportunity Commission (“EEOC”) is a federal agency responsible for administering and enforcing the federal employment laws that make it illegal to discriminate, harass, or retaliate against certain employees in the workplace. On December 16, 2020, the EEOC issued guidelines addressing the applicability of various equal employment opportunity (“EEO”) laws to the availability of COVID-19 vaccinations. The guidelines are presented in a question-and-answer format and can be found on the EEOC’s website.

Overall, the EEOC stated that “EEOC laws do not interfere with or prevent employers from following CDC [Center for Disease Control] or other federal, state, and local public health authorities’ guidelines and suggestions.” In other words, employers can require their employees to receive the COVID-19 vaccine. However, there are some notable exceptions to this allowance, and there are many things employers should take into consideration when deciding to require employees to receive the COVID-19 vaccine. The EEOC addressed a number of these issues in their questions and answers, some of which are discussed herein.

ADA and Vaccinations

The EEOC addressed specific questions regarding the applicability of the Americans with Disabilities Act (“ADA”) and the COVID-19 vaccination. Among others, one of the big questions asked was, “[i]s asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?” The EEOC stated that simply requesting proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. However, the EEOC noted that subsequent employer questions, “such as asking why an individual did not receive a vaccination,” may elicit information about a disability and would be subject to the ADA standard that they be “job-related and consistent with business necessity.” Similarly, administering a COVID-19 vaccine to an employee is not a “medical examination” for purposes of the ADA, but pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability. If pre-screening questions are asked, employers must show that such questions are “job-related and consistent with business necessity.”

ADA, Title VII, and Vaccinations

Another important question the EEOC answered was, “[w]hat happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?” This question also implications Title VII of the Civil Rights Act of 1964 (“Title VII”), which addresses, among others, discrimination on the basis of religion. The EEOC stated that “[i]f an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.” The EEOC advised employers to consider other civil rights laws before terminating an employee’s termination.

If you feel your employment rights have been violated, or if you have any other questions regarding the same, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you!

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