Rina RussoJanuary 12, 2021 

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated and expanded its technical assistance publication addressing issues arising under the federal equal employment opportunity laws implicated in the COVID-19 pandemic. In its guidance, the EEOC indicated that employers may require employees to receive the COVID-19 vaccine, so long as such requirement allows employees to seek accommodations from the requirement on the basis of a disability or a sincerely held religious belief. If an employee objects to receiving a COVID-19 vaccine for reasons related to the employee’s disability or sincerely-held religious belief, the employer has a duty to engage in the “interactive process” to determine whether it can make a reasonable accommodation for the employee.

Because pre-screening vaccination questions are likely to elicit information about a disability, an employer that plans to administer the vaccine (or have a third party with whom the employer contracts to administer a vaccine), must show that any pre-screening-disability inquiries are “job-related and consistent with business necessity.” However, this rule does not apply to (1) employers that make the vaccination voluntary or (2) employers that mandate the COVID-19 vaccine be obtained by a third-party (such as a pharmacy or other healthcare provider) to which it has no connection. The guidance also clarifies that employers may request proof of receipt of a COVID-19 vaccine from their employees. However, employers that request such proof of vaccination should caution employees not to provide other medical information as part of the verification process to avoid implicating the Americans with Disabilities Act (ADA).

Additionally, the EEOC made clear that it will not be a violation of the Genetic Information Nondiscrimination Act (GINA) to require employees to receive COVID vaccines that use new mRNA technology. However, employers should be careful not to ask employees for genetic information, including the employees’ family histories.

Although it appears that federal law allows employers to mandate COVID-19 vaccinations of employees in certain circumstances, employers must carefully consider multiple factors before determining whether to implement a mandatory COVID-19 vaccination policy. Employers must consider any applicable state and local laws related to mandatory vaccinations.  Additionally, for unionized entities, employers must review their collective bargaining agreements to determine whether they have a duty to bargain prior to implementing such a policy.  Employers should also consider how to balance their interest in maintaining a safe work environment with employee privacy concerns and morale.

Regardless of whether an employer decides to mandate COVID-19 vaccinations, it should start preparing and/or updating their infection prevention policies as vaccinations become more readily accessible to the general public. We will continue to monitor developments related to the new vaccines and related workplace questions that arise.

Rina Russo is a partner at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at rrusso@walterhav.com or at 216-928-2928.

Elizabeth Bolduc is an associate at Walter | Haverfield who focuses her practice on labor and employment law. She can be reached at ebolduc@walterhav.com or at 216-658-6218.