by | Dec 22, 2020

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued its much-anticipated guidance about the forthcoming COVID-19 vaccination and its interplay with various employment laws. The guidance consists of nine Questions and Answers, and can be found in Section K here.

The Guidance generally confirms an employer’s ability to require its employees to receive a COVID-19 vaccination, but addresses important limitations on that ability imposed by the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and the Genetic Information Nondiscrimination Act (GINA).

Below is a question-by-question summary of the EEOC guidance, followed by an overview of best practices:

  • Administration of a vaccination approved by the Food and Drug Administration (FDA) is not a “medical examination” under the ADA. The ADA sets certain restrictions on an employer’s ability to conduct a “medical examination” of an applicant or employee. The EEOC states the actual administration of an FDA-approved vaccine is not a medical examination, and thus not subject to those restrictions. This declaration is subject to an important caveat regarding screening questions, as discussed below.
  • Pre-vaccination screening questions likely constitute disability-related inquiries and may trigger certain requirements under the ADA. The Centers for Disease Control (CDC) advises health care providers to ask specific questions prior to administering the vaccine, which are likely to elicit information about a disability. Accordingly, if the employer (1) requires vaccinations and (2) sponsors administration of the vaccine, then it must prove the questions are “job-related and consistent with business necessity.” To meet this standard an employer needs a “reasonable belief, based on objective evidence,” that an employee who declines to answer these questions (and thus does not receive the vaccination) will pose “a direct threat to the health or safety” of the employee and/or others.

There are two situations in which the employer does not have to meet this “job-related” and “business necessity” standard. First, no such showing is required if the employer offers the vaccine on a voluntary basis such that answering the screening questions is also voluntary. If an employee chooses not to answer the screening questions, then the employer can refuse to administer the vaccine but cannot retaliate against, intimidate, or threaten the employee for refusing to answer the questions. Second, no such showing is required if the employee receives a required vaccine from a third party that has no contract with the employer (e.g., a pharmacy or other healthcare provider).

The guidance also reminds employers of their obligation to keep medical information obtained in the course of any vaccination program confidential.

  • Requiring proof of receipt of a COVID-19 vaccination is not a disability-related inquiry under the ADA. While requiring proof of vaccination is not a disability-related inquiry, of an by itself, employers should remember two things: (1) follow-up questions about vaccination or lack thereof may constitute a disability-related inquiry (e.g., “Why didn’t you receive a vaccination?”) and therefore have to be job-related and consistent with business necessity; and (2) warn employees not to provide medical information as part of any written proof from a third-party vaccine administrator.
  • Employers can learn more about Emergency Use Authorization (EUA) of COVID-19 vaccines, if desired. The guidance provides a brief summary of EUAs, which may be the only way COVID-19 vaccines will be available to the general public for the immediate future. Please refer to the guidance for further information.
  • Employers requiring COVID-19 vaccination must account for an employee’s disability-related concerns and make reasonable accommodations that do not impose an undue hardship under the ADA. It is important that any employer who requires employees receive a COVID-19 vaccine account for obligations under the ADA and be prepared to engage employees with a disability in the interactive process. The EEOC provides a detailed discussion on this fact-specific and nuanced issue.

    • Qualification Standard: Employers can generally impose a qualification standard that requires individuals “not pose a direct threat to the health and safety of individuals in the workplace,” such as a vaccine requirement. If that standard would tend to screen out individuals with a disability, however, then the employer must show an employee who does not meet it would pose a “direct threat.”
    • Direct Threat: A “direct threat” exists if there is a “significant risk of substantial harm to the health or safety of the individuals or others that cannot be eliminated or reduced by reasonable accommodation.” To determine whether a direct threat exists, employers must engage in an “individualized assessment” of four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood the potential harm will occur; and (4) the imminence of potential harm. Thus, in the context of a mandatory vaccination policy and a qualified individual with a disability that is unable to receive the vaccine, an employer must determine whether the “unvaccinated individual will expose others to the virus at the work site.”
    • Reasonable Accommodation: There are two general types of reasonable accommodations that an employer may be required to make if an employee’s inability to receive a COVID-19 vaccine would constitute a direct threat: accommodations in the workplace, and accommodations out of the workplace.

If the employer determines an unvaccinated individual would pose a direct threat at the worksite, the employer cannot automatically exclude the employee from the worksite—it must first determine whether there is a reasonable accommodation (absent undue hardship) that would eliminate or satisfactorily reduce the risk to remove the direct threat.

If there is no on-site reasonable accommodation that would reduce the direct threat to an acceptable level, then the employer may exclude the employee from the physical worksite(s) but must then consider whether an offsite reasonable accommodation is possible (e.g., remote work). Employers should also consider whether leave is warranted under employer policies, the Family Medical Leave Act (FMLA), and/or the Families First Coronavirus Response Act (FFCRA) (which is currently set to expire on December 31, 2020).

    • Employers must therefore engage employees in the interactive process when faced with a request for a reasonable accommodation. Guidance notes it is important that employers make sure managers and supervisors are familiar with the employer’s vaccination requirement, able to recognize an employee’s accommodation request, and respond accordingly (either personally, or through following the appropriate channels).
    • Undue Hardship: If there is an available reasonable accommodation the employer should then determine whether the accommodation poses an undue hardship (significant difficulty or expense). The guidance notes that one factor in this determination is the prevalence of vaccinated employees and the amount of contact with others at the workplace whose vaccination status is unknown. The EEOC also refers employers to helpful resources provided by the Job Accommodation Network, available here and the CDC, available here.
    • Confidentiality and Anti-Retaliation: The guidance reminds employers that it is unlawful to disclose that an employee is receiving an accommodation, and/or to retaliate against an employee for requesting an accommodation.
  • Employers requiring COVID-19 vaccination must account for an employee’s “sincerely held religious belief” and make reasonable accommodations that do not impose an undue hardship under Title VII. Title VII requires that employers provide reasonable accommodations to employees with a sincerely held religious belief, unless doing so would pose an undue hardship (i.e., “more than a de minimis cost or burden”). The EEOC recommends employers to “ordinarily assume” a request for a religious accommodation is based on a sincerely held religious belief, though there may be instances in which an employer is able to request additional supporting information.
  • There may be situations in which no reasonable accommodation is possible. If an employee with a disability and/or sincerely held religious belief cannot get a vaccine and there is no on-site reasonable accommodation, then the employer may exclude the employee from the worksite. The employer must then engage the employee to determine if an offsite reasonable accommodation is available.
  • GINA is not implicated when an employer administers a COVID-19 vaccine to employees or requires proof of vaccination. GINA prohibits an employer from using genetic information to make employment-related decisions, acquiring genetic information (except in six narrow categories), or disclosing genetic information (except in six narrow circumstances). These restrictions are not violated when an employer administers a COVID-19 vaccine or receives proof of vaccination, even if the vaccine uses mRNA technology.
  • Pre-vaccination screening questions may trigger GINA restrictions. The screening checklists to be used by healthcare providers remain uncertain, but may elicit information about genetic information protected by GINA. If so, the EEOC recommends an employer request proof of vaccination rather than administering the vaccine itself. Employers should warn employees that any proof of vaccination should not include genetic information.
  • State and Local Considerations: The EEOC guidance focuses exclusively on federal employment laws that may affect employers’ vaccination policies. State and local governments may also pass or enforce laws affecting vaccination policies, so employers should monitor legislation and enforcement at the state and local level as well.

Employers should determine how to respond to the availability of the COVID-19 vaccine(s) in the coming months, and must account for federal, state, and local laws (and guidance) that affect those decisions and policies. Depending on the employer’s decision, it may be desirable to implement a written workplace policy specific to COVID-19 vaccinations, particularly if they will be required. The Firm’s employment lawyers are happy to help employers ensure their decision-making and policy-drafting processes are compliant with federal, state, and local legal considerations.