Will Mandatory Covid Vaccinations For Employees Be Legal?

Recent guidance from the EEOC indicates that a mandatory COVID 19 vaccination policy for employees can be legal.  An employee, however, may be entitled to an exemption based on a disability or religious belief barring proof of undue hardship (under the California Fair Employment Housing Act (FEHA) and Americans with Disabilities Act (ADA)). 

In December 2020, the EEOC updated its COVID-19 guidance to address vaccination issues.   This new EEOC guidance states that a COVID-19 vaccine is not a medical examination for purposes of the ADA, however pre-screening vaccination questions and giving the vaccine can trigger ADA regulations on disability-related inquiries and reasonable accommodations.  Under the ADA, an employer cannot require a medical examination or inquire whether a current employee has a disability, unless doing so is both job-related and consistent with business necessity.  

A vaccine does not seek information about an individual’s impairments or current health status and, therefore, it is not a medical examination according to the EEOC.  However, in California, it is a more risk averse employment practice to have evidence to show the mandatory vaccination program was job related and consistent with business necessity.   This is very close to showing there was a direct threat to worker safety.   The ADA has an exception which permits employers to exclude an employee from the workplace if he/she possesses a direct threat to his own safety or others, and no accommodation can be provided to eliminate that potential threat.

If quarantining individuals under health orders, or the risk of spread/quarantine/ isolation/ outbreak, directly impacts business operations then a company should be able to have a mandatory vaccination program.  This will depend on facts such as the proximity between employees in the workplace.  The more likely it is that a non-vaccinated employee puts employees, customers or the public at risk, then the more compelling case an employer will have for mandatory vaccinations.

If an employer plans to implement a mandatory vaccination policy, employers should consider the following:

1) An employer should be able to show that the vaccine is job related and consistent with business necessity to be more risk averse.  Certainly, an employer must show that pre-screening questions are job-related and consistent with business necessity, and should treat the vaccine in the same way to reduce the risk of a claim or liability in California.  

2) An employer should have objective evidence that an employee who does not take the vaccine will pose a direct threat to the health or safety of herself/himself or others.

3) Employers should keep any employee medical information obtained in the course of a vaccination program confidential.

4) Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability (or religious objection), and know to whom the request should be referred for consideration.  

Employers have a strong legal argument for requiring employee vaccinations (as COVID-19 vaccines become available), so long as their vaccination policies are consistently applied company wide, have certain exceptions (mentioned above), are job-related and consistent with business necessity, and are being implemented to prevent a direct threat to worker safety.