EEOC Offers an Answer - Can An Employee Who Declines to be Vaccinated Against COVID-19 Be Banned from Workplace?

WASHINGTON– The federal government has provided greater clarity around whether employees can be required to get a COVID-19 vaccine before returning to work. The short answer employers can require workers to be vaccinated or otherwise be barred from the workplace, according to the U.S. Equal Employment Opportunity Commission—but the guidance comes with a caveat.
thumbnail_EEOC

Separately, a panel of the Centers for Disease Control and Prevention has voted to include financial services workers in Phase 1c of COVID-19 vaccinations. The recommendations of the CDC’s Advisory Committee on Immunization Practices mean credit union employees would be prioritized for vaccine doses alongside workers in sectors considered essential but with a substantially lower risk of exposure to COVID-19.

While vaccines are now becoming available, a sizeable percentage of Americans have indicated they are skeptical of or will decline to get the vaccination. That creates a dilemma for employers, such as credit unions, where employees interact not just with each other but with members and the general public.

As the New York Times reported, employers had been waiting for guidance from the U.S. Equal Employment Opportunity Commission, the agency that enforces laws against workplace discrimination, because “requiring employees be tested for the coronavirus touches on thorny medical and privacy issues covered by the Americans With Disabilities Act of 1990…Businesses and employers are uniquely positioned to require large numbers of Americans who otherwise would not receive a vaccination to do so because their employment depends on it.”

‘Doesn’t Fit the Description’

The report noted the disabilities act limits employers’ ability to require medical examinations like blood tests, breath analyses and blood-pressure screening. The administration of a COVID-19 vaccine to a worker by an employer doesn’t fit that definition, according to the EEOC.

“If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status,” the EEOC stated, “and, therefore, it is not a medical examination.”

In addition, on its website, the EEOC said that requiring an employee to show proof of having gotten a COVID-19 vaccination would not amount to a disability-related inquiry. “There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related,” the commission said.

A Word of Caution

But the Times also noted employers may need to be careful about how they handle the process, pointing out that prescreening vaccination questions could violate an ADA provision on disability-related inquiries. Employers administering vaccines, the guidance said, must show that prescreening questions are “job related and consistent with business necessity.”

CUToday