On December 16, the U.S. Equal Employment Opportunity Commission updated its running COVID-19 guidance to include critical new information about the intersection of equal employment laws and the COVID-19 vaccine. Most importantly, the EEOC explained that employers may adopt a COVID-19 vaccination requirement if it is job related and consistent with business necessity. The EEOC also stated that employers may ask or require employees to show proof of vaccination without that constituting a “disability-related inquiry” under the Americans with Disabilities Act.

The EEOC cautioned that if an employee is unwilling or unable to be vaccinated due to an alleged disability, then the employer must undertake a two-step analysis. First, the employer must assess whether an unvaccinated employee would constitute a “direct threat” to the workplace by considering: “[1] the duration of the risk; [2] the nature and severity of the potential harm; [3] the likelihood that the potential harm will occur; and [4] the imminence of the potential harm.” To determine that an unvaccinated employee constitutes a “direct threat,” an employer must conclude that “an unvaccinated individual will expose others to the virus at the worksite.” Second, the employer must consider whether any reasonable accommodation (absent undue hardship) would eliminate or reduce the risk.

Finally, the EEOC provided guidance concerning how employers should address claims for religious exemptions. If an employee has a sincerely held religious belief that prevents them from receiving the vaccination, then the employer must provide a reasonable accommodation unless it would pose an undue hardship. Under Title VII, an undue hardship is defined “as having more than a de minimis cost or burden on the employer.”