Executive Compensation, Benefits & ERISA

May an employer require a COVID-19 vaccine as a condition of employment?

According to the EEOC, generally yes, with important caveats.

The EEOC has updated its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws Q&A (“EEOC Q&A”) to include questions and answers about COVID-19 vaccinations of employees. This guidance suggests that employers may be able to require COVID-19 vaccinations so long as they comply with the requirements of the Americans with Disabilities Act, Title VII of the Civil Rights Act, and Title II of the Genetic Information Nondiscrimination Act.

Here is a summary:

1. Employers must provide reasonable accommodations to workers who are disabled or who have sincerely held religious practices or beliefs.

2. Employers who administer vaccinations to employees should be mindful that pre-vaccination medical screening questions may be likely to elicit information about a disability, which would then require the employer to show that the questions are “job-related and consistent with business necessity.”

3. Employers who request proof of vaccination from employees should ensure that any other questions are tailored to avoid eliciting information about a disability unless it is “job-related and consistent with business necessity.”

4. When requesting information from employees in connection with their vaccination, employers should be careful not to elicit employees’ genetic information and may consider warning employees against providing it.

5. If the presence of an employee who cannot be vaccinated poses a “direct threat” at the workplace, which cannot be eliminated by a reasonable accommodation, the employer may physically exclude the employee from the workplace. This does not mean, however, that the employer may automatically terminate the worker – the employer must consider what protections the employee may have under relevant employment laws.

A direct link to the section on Vaccinations in the EEOC Q & A is below: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws#K.

Look out for further guidance from federal, state and/or local authorities.

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As you consider how to implement the appropriate policies and procedures for your business, please do not hesitate to contact a member of Herrick’s Employment Practice with any questions.

Carol M. Goodman at +1 212 592 1465 or [email protected]
Meaghan Roe at +1 212 592 1632 or [email protected]
Silvia Stockman at +1 212 592 1583 or [email protected]

© 2020 Herrick, Feinstein LLP. This alert is provided by Herrick, Feinstein LLP to keep its clients and other interested parties informed of current legal developments that may affect or otherwise be of interest to them. The information is not intended as legal advice or legal opinion and should not be construed as such.