As distribution of the COVID-19 vaccine begins, the Equal Employment Opportunity Commission has modified its What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws resource to address the impact of federal non-discrimination laws on an employer’s vaccine requirements. Of particular interest, the EEOC makes the following points with regard to the Americans with Disabilities Act, Title VII and the Genetic Information Nondiscrimination Act:
Notably, the EEOC emphasizes that federal antidiscrimination laws do not interfere with or prevent employers from following guidelines and suggestions from the CDC or other governmental public health authorities. The EEOC also refers employers to the FDA’s website for more information on the Emergency Use Authorization of COVID-19 vaccines, which differs from the normal approval process.
The Americans with Disabilities Act. The EEOC states that the vaccine is not a medical examination, and therefore is not subject to the restrictions on medical testing and inquiries imposed by the Americans with Disabilities Act. However, pre-screening vaccination questions, which may elicit information about a disability, may be subject to the ADA’s standard for disability-related inquiries – meaning that the employer must be able to show that such inquiries are job-related and consistent with business necessity. The EEOC notes that, in order 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.” Any medical information obtained in the course of the vaccination process must be kept confidential under the ADA.
The EEOC notes two exceptions to the “job-related and consistent with business necessity” standard. First, if the vaccine is offered on a voluntary basis, then employees can choose not to answer the pre-screening questions, and the employer can then decline to administer the vaccine but may not retaliate against the employee for that choice. Second, if the employee receives the vaccine from an unrelated third-party provider (like a pharmacy or other health care provider), then the ADA does not apply to that provider’s questions.
Requiring proof of vaccination is not a medical inquiry under the ADA. However, asking why an employee did not get a vaccination might be covered by the ADA as it may elicit information about a disability. The EEOC recommends that employers warn employees not to provide any medical information as part of the proof.
In its Q&As, the EEOC assumes that an employer can mandate vaccinations, and can exclude from the workplace an unvaccinated employee who poses 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.” This requires an individualized assessment that considers four factors: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. Based on this assessment, the employer must determine that an unvaccinated individual will expose others to the virus at the worksite and, further, that there is no reasonable accommodation that would reduce or eliminate the risk.
The EEOC notes that, although an employer can bar the unvaccinated employee from the workplace, it may need to consider whether other accommodations are possible or rights are available – such as remote work or leave under the Families First Coronavirus Response Act (which is currently set to expire on December 31,2020), the Family and Medical Leave Act, or employer policy. The employer may rely on CDC recommendations or OSHA guidance in determining whether accommodations pose an undue hardship.
Thus, if an employee requests an exemption from a vaccine mandate as a reasonable accommodation for a disability (which may include pregnancy-related disabilities), the employer should engage in the normal reasonable accommodations process under the ADA. This typically starts with requesting medical information regarding the employee’s disability, and why it would prevent them from receiving the vaccine.
Title VII. Employers may also need to consider whether to provide exemptions to a vaccine mandate as a reasonable accommodation for religious needs in accordance with Title VII. As with the ADA, such accommodation cannot pose an undue hardship, but the standards for undue hardship under Title VII is lower than under the ADA – it simply must have more than a de minimis cost or burden on the employer. The EEOC notes that the definition of religion is very broad, and employers should normally assume that the employee’s belief is sincere. But if the employer has an objective basis for questioning the religious nature or the sincerity of the belief, the employer may request additional supporting information.
Similar to the ADA situation, although an employer can bar the unvaccinated employee from the workplace, it may need to consider whether other rights are available before terminating that employee.
GINA. As under the ADA, administering a COVID-19 vaccine or requiring proof of vaccination does not implicate GINA, although pre-screening questions may do so, if they seek information about an individual’s genetic information. GINA does not apply to genetic information questions asked by an employee’s own health care provider who does not work for the employer, but employees should be warned that they should not provide genetic information as part of proof of vaccination.
The EEOC also explains, in some detail, that the mRNA technology used in certain COVID-19 vaccines does not alter an employee’s genetic information and therefore does not constitute an unlawful use of genetic information.
Webinar. Shawe Rosenthal will be discussing this and other workplace issues relating to the COVID-19 vaccine in a complimentary webinar on Friday, December 18, 2020 at 12 p.m. Eastern. You may register for the webinar here.