As you may aware, we are starting to see the first doses of the COVID-19 vaccination being administered in the United States. On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) released important guidance for employers regarding the COVID-19 Vaccine in the workplace in relation to the ADA, the Rehabilitation Act, and Other EEO Laws. We recommend employers review the guidance in its entirety, but have summarized the key takeaways below:
The ADA and Mandatory Vaccinations
Prescreening and the ADA.
The guidance provides that the COVID-19 vaccine is not a medical examination under the ADA as the employer is not seeking information about an individual’s impairments or current health status.
However, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries. If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.” To meet this standard, “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”
There are two circumstances where disability-related screening questions can be asked without having to satisfy the “job-related and consistent with business necessity” standard:
- If an employer offers a vaccination on a voluntary basis, then the pre-screening disability-related questions must also be voluntary. If an employee chooses not to answer the questions, an employer may decline to administer the vaccine, but may not retaliate against, intimidate or threaten the employee for choosing not to answer.
- If an employee receives a vaccination as required by the employer through a third party that is not contracted with the employer (e.,pharmacy or healthcare provider), the ADA’s “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-screening questions for the vaccination.
Requesting proof that an employee has received a COVID-19 vaccination is not a disability-related inquiry. However, asking any other questions (like why an individual did not receive a vaccine), may elicit disability-related information and would be subject to the ADA’s standard of “job-related and consistent with business necessity.”
ADA and Title VII Issues Regarding Mandatory Vaccinations
The ADA and Disability Exceptions.
If an employee indicates that they are unable to receive a COVID-19 vaccination because of a disability, the ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”
However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”
Title VII and Religious Exceptions.
With respect to exceptions for sincerely held religious belief, practice or observance, employers must provide reasonable accommodation for such beliefs unless it would pose an undue hardship (which, for religious belief, is defined as “more than a de minimis cost or burden to the employer”).
- Documentation to Support Request. Employers may generally request that the employee provide supporting documentation to support exception requests for disability or religious reasons.
- Excluding a Worker Where No Reasonable Accommodation Is Possible. 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. 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.
- Title II of the Genetic Information Nondiscrimination Act (GINA) and Vaccinations. Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. However, pre-screening questions that ask about genetic information (such as family medical history) may violate GINA. 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.
We will continue to monitor developments relating to the COVID-19 vaccine and the workplace and will keep you updated regarding same. Should you have any questions, please contact ALG.