On December 16, 2020, the EEOC issued guidance on employer-mandated COVID-19 vaccinations.  The requirement by employers for employees to receive vaccinations raises many issues dealing with privacy, the extent of control employers have over employees, and workplace safety, among others.  Here are five issues employers should understand about the new EEOC guidance:

1. Can employers require employees to receive a COVID-19 vaccine?

The guidance does not explicitly answer this question.  However, the guidance discusses various questions related to an employer’s mandated vaccination, and therefore, implicitly permits employers to require vaccinations.  See question K.2. (“If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, are these questions subject to the ADA standards for disability-related inquiries?”), K.3. (“Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?”) and K.5

2. Employers must still provide reasonable accommodations to employees who is unable to receive a COVID-19 vaccination.

The guidance explains that employers must provide reasonable accommodations to employees who refuse to be vaccinated because of a disability (see question K.5.)  or their sincerely held religious practice or belief (see question K.6.).

3. Employers must protect confidential medical information obtained from employees.

The EEOC guidance explains that while the vaccination itself is not a medical examination, pre-screening vaccination questions may illicit information about an employee’s disability (see questions K.1. and K.2.).  Therefore, if the vaccination is required by the employer, the employer must establish that the disability-related questions are “job-related and consistent with business necessity.”  The EEOC guidance explains, “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.”  This job-related requirement does not have to be met if the vaccination is voluntary or if a third-party (such as a pharmacy or other healthcare provider) administers the vaccination.

The EEOC guidance also reminds employers that the ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

4. Can employers exclude employees who refuse to be vaccinated from work?

To the extent that a vaccination requirement “screens out or tends to screen out an individual with a disability, the employer must show that the unvaccinated employee 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.’”  To make this determination, employers would need to assess four factors: the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.  The EEOC notes that if there is a direct threat that cannot be reduced to an acceptable level, then an employer may exclude the employee from the workplace.  But it does not mean the employee may automatically be terminated, and the employer will need to examine other accommodations that could be made available to the employee, such as remote work.  The direct threat standards can be difficult to analyze and implement, so employers need to approach this carefully and should seek the help of employment counsel.

5. California employers need to consider California law as well.

Before implementing any mandatory vaccination requirements, California employers will need to address the current status of California state law, as well as local laws.  In addition, there are many other California specific questions regarding if employers who require their employees to be vaccinated must pay for the vaccination and time to receive the vaccination.  Employers need to approach the issue with caution and continue to monitor the laws.