In an effort to respond to the need of employers to have clear guidance on the extent to which they can mandate COVID-19 vaccines under the Americans With Disabilities Act and Title VII, the U.S. Equal Employment Opportunity Commission on Dec. 16 updated its guidance on vaccines by issuing "What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws."

The commission acted quickly in responding to the employer community, which had publicly challenged the EEOC to detail its guidance in the fast-changing COVID-19 world.

Essentially, the EEOC has said all employers can require mandatory vaccines as long as the employer: (i) allows employees to receive the vaccine from a third party that does not have a contract with the employer, and (ii) follows accommodation requirements under the ADA and Title VII.

The revised guidelines

The main legal restriction on requiring employees to be vaccinated comes from the ADA, which contains strict restrictions on an employer's ability to require employees to undergo a medical examination and make disability-related inquiries.

The EEOC stated in its revised guidance that a vaccine is not a medical examination and that asking employees about whether or not they have been vaccinated is not a disability-related inquiry. (On the latter point, at least one federal court has arguably held to the contrary, holding that inquiring about whether an employee is immune to a disease is a disability-related inquiry.)

However, the EEOC also stated that pre-screening questions asked by the employer, or a contractor administering the vaccine at the employer's request, "may" implicate the ADA's provision on disability-related inquiries as they are "likely" to elicit information about a disability.

Thus, if an employer administers the vaccine, or a contractor does so on its behalf, the employer must show that such pre-screening questions are job-related and consistent with business necessity.

Originally Published by New England In-House.

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