EEOC issues guidance to employers on mandating vaccines

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) expanded its COVID-19 guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to respond to employer questions about the use of the new COVID-19 vaccine (https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation- act-and-other-eeo-laws). The guidance focuses on how employers that wish to mandate the vaccine can avoid liability under the Americans with Disabilities Act (ADA), Title VII of the Civil Right Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). Employers must provide a reasonable accommodation under the ADA for those whose disabilities prevent them from taking the vaccine, such as seeking an alternative, perhaps remote role.

If the employer cannot accommodate these employees, it can remove them from the workplace if it can show unvaccinated employees would pose a “direct threat” to the workplace, but it should not automatically terminate them. Rather, the employer should exhaust all leave and other options available to the employees. It likewise must provide a reasonable accommodation to those whose sincerely held religious beliefs do not allow them to take the vaccine.