The Legal Brief: EEOC Updated Guidance on COVID-19 Vaccines

The Legal Brief:
U.S. Equal Employment Opportunity Commission (EEOC)
Updated Guidance on COVID-19 Vaccines
EEOC Guidance on Requiring COVID-19 Vaccination

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Question and Answer technical assistance to include questions related to vaccination requirements. We offer a summary of some of the more relevant questions from the guidance below; the full document (found here) also addresses pre-vaccination screening questions, as well as the application of the Genetic Information Non-discrimination Act to vaccination requirements.

Can a school district require all employees to receive a COVID-19 vaccine once it is available?

Yes, as long as the district allows for exemptions for disability and religious belief.

Under the ADA, Districts are permitted to set qualification standards related to workplace health and safety, which could include a requirement to receive a COVID-19 vaccine. However, districts must also provide an exception for those with disabilities, unless allowing an employee to forego vaccination would create a direct threat to health and safety (discussed below).

Districts must also allow an exception for employees who express an objection based on a sincerely-held religious belief, unless doing so would cause a potential risk to health and safety.

If an employee reports that he or she cannot receive the vaccine due to a disability, how should the district respond?

If an employee reports that he or she is unable to receive a COVID-19 vaccine due to a disability, the district should first determine whether allowing an exemption to the vaccination requirement would pose a direct threat to health and safety. The EEOC defines a direct threat as a significant risk of substantial harm to the employee, coworkers, or others. Previous EEOC guidance indicated that the COVID-19 pandemic presents a direct threat, so as long as the pandemic is ongoing, a district could determine that exempting an employee from vaccination poses a direct threat.

However, districts should evaluate the risk posed by the employee’s position. For example, a teacher may pose a greater threat than a maintenance staff member due to interaction with students. Districts should also consider whether there are any accommodations that can reduce the threat. Determinations regarding direct threat can be challenging, and districts are advised to consult with counsel in reaching a decision.

How should a district respond to an employee who raises a religious objection to vaccination?

If an employee objects to vaccination on the basis of religion, the district should evaluate whether allowing the exemption would pose an undue hardship. In most cases, a district should assume an expressed religious belief is sincerely held, unless the district has reason to believe otherwise.

The standard for accommodating religious beliefs is lower than that used to evaluate disability accommodations. If a district determines that allowing an exemption would pose a threat to the health and safety of the workplace, it may exclude the employee. Districts should consult with counsel prior to terminating any employee who declines vaccination.

Is asking for evidence that an employee has received a COVID-19 vaccine considered a disability-related inquiry?

No. A district asking for proof of vaccination alone is not considered a medical or disability-related inquiry.