As the COVID-19 vaccines continues to roll out, have you considered whether you will mandate the vaccine for your employees? If so, the Equal Employment Opportunity Commission (EEOC) has recently released some important guidance on this very topic. The guidance makes it clear that mandating and implementing a COVID-19 vaccination program for employees may have important consequences under federal laws including the Americans with Disability Act (ADA), Title VII of the Civil Rights Act, and the Genetic Nondiscrimination Act (GINA).
First, employers should note that the EEOC seems to be recommending that, should employers seek to mandate COVID-19 vaccines for all employees, it may be best for employees to go through a third-party not contracted with the employer for the vaccination, as opposed to the employer setting up its own vaccination program. This is due to the fact that pre-screening vaccination questions, such as whether there is any medical reason that would prevent the employee from receiving the vaccine, may implicate the ADA provision pertaining to disability-related inquiries. Furthermore, the EEOC guidance states that, while requiring employees to receive the vaccine does not violate GINA, requiring employees to answer pre-screening questions that ask about genetic information may violate GINA.
Title VII may be implicated in a situation where an employee refuses the vaccination due to a religious practice or belief. Under this circumstance, the employer may be required under Title VII to provide a reasonable accommodation for the employee, unless it would cause an undue hardship. In evaluating whether having an exception to the vaccination requirement would cause an undue hardship, employers should consider a number of factors. This may include considering how many employees have already received the vaccine.
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