With the availability of the COVID-19 vaccinations, questions may arise regarding employer and employee rights surrounding these vaccinations and the applicability of various employment laws. The Equal Employment Opportunity Commission (“EEOC”) issued new guidance that preemptively answers some questions that may arise now that COVID-19 vaccinations are beginning to be administered. Relevant portions of the guidance are highlighted below.
General Counsel, P.C. Summary of EEOC Guidance: According to this guidance, employers may require employees to get a vaccination. However, if an employee is unable to get a vaccine due to a disability or religious belief, reasonable accommodations may need to be made. If employers choose to require employees to get COVID vaccinations, it may be beneficial to require employees to get the vaccines from pharmacies or personal health care providers. If an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, the ADA and GINA restrictions would not apply to the pre-vaccination medical screening questions. The EEOC also notes that employers that require proof of vaccination should advise employees not to provide any medical information as part of the proof. If you have additional questions, do not hesitate to contact Merritt Green, Chair of General Counsel, P.C.’s Employment Law Practice, at 703-556-0411, firstname.lastname@example.org, or visit www.gcpc.com.
Below is some of the relevant information contained in this guidance. You can find the EEOC’s full guidance here.
Is the administration of a COVID-19 vaccine to an employee by an employer (or contracted third party) a “medical examination” under the Americans with Disabilities Act (“ADA”)?
No. The EEOC confirmed that the vaccination is not a medical examination. However, “pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries.” The guidance states that employers administering the vaccine “must show that such pre-screening questions it asks employees are job related and consistent with business necessity.” This standard requires an employer “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.”
If an employer offers a vaccination to employees on a voluntary basis, the employee’s decision to answer pre-screening, disability-related questions must also be voluntary. An employer may decline to administer the vaccine if an employee chooses not to answer these questions, but may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions. Alternatively, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer (such as a pharmacy or other health care provider), the ADA restrictions would not apply to the pre-vaccination medical screening questions.
Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?
No. Requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry restricted under the ADA. However, subsequent questions, “such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’”
If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability?
If an employer has a vaccination requirement which 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.” The EEOC explains that “employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: 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.” Additionally, “if an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.”
The EEOC noted that “if there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker.” In such a case, an employee may be entitled to accommodations such as performing the current position remotely. Employers will also need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.
Supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should be trained to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. The EEOC states that “employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.”
If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?
“Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.” The EEOC explained that courts have defined “undue hardship” as “having more than a de minimis cost or burden on the employer.” Additionally, EEOC guidance explains that “because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.”
What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?
The EEOC guidance states that “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.” However, 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.
Is Title II of the Genetic Information Nondiscrimination Act (“GINA”) implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination?
“No. 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.’” However, pre-vaccination medical screening questions that ask about genetic information, such as family members’ medical histories, may violate GINA. The EEOC noted that it is currently unclear what screening checklists will be provided with COVID-19 vaccinations. According to the guidance, 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.”
For additional information regarding how this guidance affects your business, contact the employment law experts at General Counsel, PC today at 703-991-7973 or visit. www.gcpc.com