By Vin Gurrieri

Law360 (December 16, 2020, 2:02 PM EST ) The U.S. Equal Employment Opportunity Commission issued new guidance Wednesday outlining a road map for employers that want to require workers to get COVID-19 vaccinations, detailing the steps businesses must take before banning unvaccinated workers from job sites.

The guidance about the vaccine, which comes days after the first doses have been administered, is part of a technical assistance document on the EEOC's website that the agency has updated periodically in 2020 to answer questions surrounding employers' response to the novel coronavirus pandemic as they have come up.

The EEOC's updated guidance laid out the legal framework under the Americans with Disabilities Act and Title VII of the Civil Rights Act for how businesses that adopt a vaccine requirement should approach situations in which a worker can't receive the shot because of an underlying disability or because of their religious beliefs.

Employers must strive to first provide those individuals with a reasonable accommodation or exempt them from the vaccination requirement altogether, according to the EEOC. If that's not possible, those employees can be blocked from coming to work but can't "automatically" be terminated, according to the commission's guidance, which advised employers to instead take the full range of civil rights laws into account when considering such actions.

"If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace," the commission said in its guidance. "This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities."

When disability-related issues prevent a worker from adhering to an employer's vaccination mandate, the EEOC said that businesses should do a case-by-case analysis to figure out if that person poses a "direct threat" to workplace health and safety by being unvaccinated.

If such a threat exists, employers must look to provide the worker with a reasonable accommodation, like teleworking, to mitigate the health risk, and can only prevent the worker from physically entering the worksite if the direct threat they pose to others "cannot be reduced to an acceptable level," the guidance said. 

For religious objectors to a vaccine, employers must similarly try to accommodate the person's beliefs as long as it doesn't pose an "undue hardship," a term in Title VII that courts have defined as "having more than a de minimis cost or burden on the employer," according to Wednesday's guidance.

The EEOC also said in its new guidance that the actual process of an employee receiving a COVID-19 vaccine approved or authorized by the U.S. Food and Drug Administration won't be considered a "medical examination" for purposes of the Americans with Disabilities Act for employers that administer it or that contract with a third party to do so. The ADA places limits on employers' ability to make workers take medical tests or otherwise seek out medical information about them.

However, the EEOC still urged caution on employers' part when workers are asked questions about vaccination before a shot is administered.

"Although the administration of a vaccination is not a medical examination, prescreening vaccination questions may implicate the ADA's provision on disability-related inquiries, which are inquiries likely to elicit information about a disability," the EEOC said in its guidance. "If the employer administers the vaccine, it must show that such prescreening questions it asks employees are 'job-related and consistent with business necessity.'"

Elsewhere in Wednesday's guidance, the EEOC said businesses can require workers to offer proof that they have been inoculated against COVID-19 since it isn't an inquiry related to a person's disability and "is not likely to elicit information about a disability."

But the agency warned that certain follow-up questions could run afoul of the ADA if they do seek that kind of information. An example of one such query that the EEOC included in its guidance is if an employer asks a worker why he or she hasn't been vaccinated.

"If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA," the EEOC said.

Additionally, the EEOC said that employers who administer a COVID-19 vaccine or ask employees to show they've been inoculated aren't triggering the Genetic Information Nondiscrimination Act, which shields people from workplace bias based on their genetic information.

However, employers could run afoul of GINA if administering the vaccine requires screening questions that seek genetic information, according to the EEOC.

"If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA. However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.

Scott Mirsky, a principal at Paley Rothman, told Law360 on Wednesday that the new guidance "seems to push employers in the direction of sending their employees to their health care professional or [a] pharmacy for the vaccine" instead of offering it at the workplace.

There are "too many legal pitfalls if you try to administer the vaccine on-site, which may slow down the immunization process," Mirsky said.

--Editing by Vincent Sherry and Haylee Pearl. 

Update: This story has been updated with additional information. 

For a reprint of this article, please contact reprints@law360.com.