As you are now well aware, at least two COVID-19 vaccines have been approved for emergency use and are being administered throughout the country. Though many of your employees may not be on the priority list for vaccine distribution, it is only a matter of time before the vaccine will be available to any Oklahoman who wants one.

But what about those who might not want to receive the vaccine? And what can you, as an employer, do if you believe it is in the best interests of your business for employees to be vaccinated? The EEOC recently updated its guidance on “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” to address this very issue, including 9 new Q&As on the topic of COVID-19 vaccinations.

The most important takeaway is this: generally speaking, employers may require that employees receive a COVID-19 vaccination—absent a disability or sincerely held religious belief of the employee that would prevent him/her from receiving the vaccine. This does not mean you must require your employees to be vaccinated. It simply provides guidance for employers who want to require employees to be vaccinated.

When an employee is unable to receive the vaccine because of a disability, the employer must consider whether the unvaccinated employee poses a direct threat of a “significant risk of substantial harm to the health or safety of the individual or others [in the workplace], which cannot be eliminated or reduced by reasonable accommodation.” Employers should consider four factors in determining whether such a direct threat exists: (a) the duration of the risk; (b) the nature and severity of the potential harm; (c) the likelihood that the potential harm will occur; and (d) the imminence of the potential harm. In the context of COVID-19, this means that the unvaccinated employee could expose others to the virus at the worksite. Employers should evaluate each case independently and consider the specific circumstances involved to reach any decisions.

But the employer’s obligations do not end there. If the employer decides an employee who cannot be vaccinated due to the employee’s disability poses a direct threat to health and safety, the employer still cannot terminate the employee or take other adverse action unless there is no way to provide a reasonable accommodation (absent undue hardship to the employer) that would eliminate or reduce the risk. And even then, the employer must still consider whether any other rights apply under the EEOC laws or other federal, state, and local authorities.

As an example, the employer may be able to exclude the employee from physically entering the workplace (much like it would if the employee exhibited COVID-19 symptoms or tested positive for the virus), and a reasonable accommodation might be to allow the employee to perform his position remotely or for the employee to take some kind of leave available to him if his position is not one that lends itself to teleworking. Employers may rely on current CDC recommendations when deciding what might be an effective accommodation and whether it would pose an undue hardship on the employer. The prevalence in the workplace of other employees who have already received a COVID-19 vaccination and the individual’s amount of contact with others whose vaccination status could be unknown may impact these considerations.

As with all other ADA accommodation requests, they should be handled by appropriately trained Human Resources or other personnel and the employer must engage in an interactive process with the employee to determine if there is a reasonable accommodation. As we have continued to advise throughout this pandemic, we encourage employers to be flexible and creative in their attempt to find a solution. But there may be situations where an accommodation is not possible, because of the specific job duties or workplace, and the employer should be prepared to justify their decision based on the specific circumstances involved.

The same accommodation analysis also applies if an employer requires vaccinations and an employee refuses one based on the employee’s sincerely-held religious beliefs. EEOC guidance stresses that the employer should ordinarily assume that an employee’s request for a religious accommodation is based on a religious belief that is sincerely held by the employee, but an employer may be justified in requesting additional supporting information if it has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance.

Another important point highlighted by the EEOC in its most recent guidance relates to medical examinations and disability-related inquiries under the ADA in the context of COVID-19 vaccinations for employees. Administering a COVID-19 vaccine to an employee (whether by the employer itself or a third party retained by the employer to do so) is not a medical examination for purposes of the ADA. Nor is requiring an employee to show proof that they received the COVID-19 vaccination (as long as the employer doesn’t ask other questions, such as why the employee did not receive the vaccine).

However, pre-vaccination medical screening questions (typically asked by healthcare providers to ensure there is no medical reason that would prevent the individual from receiving the vaccine) are likely to elicit information about a disability. If any such questions are asked by the employer (or on the employer’s behalf)—such as when the employer requires the employee to receive a COVID-19 vaccine from the employer (or a third party with whom the employer contracts to administer the vaccine)—those questions would be considered disability-related inquiries under the ADA and must be job-related and consistent with business necessity.

But the employer need not satisfy this standard if (a) it has offered the vaccination to employees on a voluntary basis (where employees choose whether they want to get it and it is not required by the employer) or (b) the employee receives an employer-mandated vaccination from an outside third party with whom the employer has not contracted to administer the vaccine, such as a pharmacy or the employee’s own healthcare provider.

As with so many things over the past year, the question of whether an employer should mandate its employees get vaccinated for COVID-19 (and if so, how) is complicated. Employers should approach with caution.

By Rebecca D. Bullard, rbullard@dsda.com