Legal Risks for Employers: The EEOC Guidance Providing Road Map to Employer Mandate of Vaccines Does Not Answer all Questions
The EEOC recently updated their guidelines to address an employer’s administration and mandate of COVID-19 vaccines. (See here.)
- Confirmation that an employer may mandate a vaccine, subject to potential accommodations under the ADA and Title VII;
- Pre-screening questions prior to administering the vaccine may be disability-related inquiries depending on what they cover, but the vaccine itself is not a medical examination;
- Asking an employee whether they have or have not received a vaccine is not an ADA medical inquiry, though following up why they have or have not may be;
- Confirmation that employers should conduct an “individualized assessment” to determine whether a “direct threat” exists should it mandate the vaccine and an employee refuses. If this worker does constitute a direct threat, accommodations (such as working from home) still must be considered.;
- Confirmation that employers should attempt to accommodate employees who refuse a mandated vaccine because of sincerely held religious belief; and
- GINA is not implicated if an employer administers a vaccine or requires proof that an employee has been vaccinated. Pre-screening questions, however, may touch on GINA-covered.
Employers should be mindful, however, that the EEOC only enforces certain laws and its “green light” does not mean that other legal and employee relations issues with mandating and administering a vaccine do not exist. For example only , as part of the Emergency Use Authorization associated with the vaccines, individuals may need to be informed of their rights to refuse the vaccine, absent future action of the Secretary of the Health and Human Services. As another example, invasion of privacy concerns may exist with a forced vaccine and concerted activity may occur raising NRLA risks if employees collectively object to such mandates.
Accordingly, numerous issues will need to be considered and additional clarification will need to occur prior to any employer making a decision to mandate a vaccine.