EEOC Provides Guidance on COVID-19 Vaccine

February 18, 2021
Hall Benefits Law, LLC

The Equal Employment Opportunity Commission (EEOC) has updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” web page with a new Q&A section about COVID-19 vaccinations for employees. The new section addresses how employers that require vaccinations for workers should respond to any employee unwilling to receive a vaccination because of a disability or sincerely held religious belief.

Refusal Based on Disability

The guidance strongly suggests that requiring a vaccine is a “safety-based qualification standard” that will tend to screen out disabled workers. Therefore, an employer is not allowed to ban an unvaccinated employee from the workplace or take any adverse employment action unless the employer can demonstrate that the unvaccinated worker poses “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.”

The EEOC guidance states that the risk analysis must be “an individualized assessment of four factors in determining whether a direct threat exists: 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.” Remote work or other possible accommodations must be considered if the direct threat “cannot be reduced to an acceptable level.”

Refusal Based on Sincerely Held Religious Beliefs

Unless doing so would impose undue hardship, an employer must provide a reasonable accommodation for workers refusing to receive a vaccine based on sincerely held religious beliefs or practices. The EEOC guidance states that employers “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” However, the guidance also notes that additional information from the employee may be requested if the employer has an “objective basis for questioning” the validity of the particular religious belief.

The updated guidance also includes the following:

  • Employer administration of the COVID-19 vaccine is not considered to be a medical examination for purposes of the ADA.
  • Administration of the vaccine by an employer or a contracted third party that includes pre-screening questions recommended by the CDC are subject to the ADA’s requirements for disability-related inquiries.
  • Requiring an employee to show proof of having received a COVID-19 vaccine is not a disability-related inquiry under the ADA.

Employers seeking to mandate vaccines in the workplace should consult with a qualified employment attorney to ensure any vaccination policy conforms to current EEOC guidance.

Hall Benefits Law has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 678-439-6236.

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.

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