EEOC Issues Guidance on COVID Vaccine

The FDA has begun the process of approving vaccines for COVID-19, and many employers have raised questions regarding whether and how to implement a vaccination protocol in the workplace.  Yesterday, the Equal Employment Opportunities Commission (“EEOC”) issued guidance for employers on how the vaccine interacts with federal equal employment opportunity laws, such as the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and Title VII.

Administering the Vaccine and Seeking Proof of Vaccination

Employers may be aware that there are specific rules under the ADA which specify that an employer may engage in medical examinations or inquires of its employees only when the examinations are “job-related and consistent with business necessity”. The EEOC vaccine guidance states that an employer administering the vaccine to an employee is not engaging in a “medical examination” under the ADA as it is not a “procedure or test” that seeks information about the individual’s health or impairments.  The administration of the vaccine also does not implicate GINA, even though certain vaccines utilize mRNA technology.  Additionally, the EEOC does not consider an employer requiring proof of vaccination to be making a disability-related inquiry since there are many reasons why an employee may or may not have been vaccinated.  If, however, the employer subsequently questions why the employee did not receive the vaccine, that would be considered a medical inquiry as the answer could reveal disability-related information. The EEOC recommends that employers requiring proof of vaccination caution their employees not to provide any medical or genetic information as part of that proof in order to avoid implicating the ADA and GINA.

Pre-Screening Questions

Health care providers may need to ask certain questions before administering the COVID-19 vaccine to ensure that there is no medical reason that would prevent the individual from receiving the vaccination.  For employers who ask pre-screening vaccination questions prior to administering the vaccine (either themselves or through a contractor), those questions “are likely to elicit information about a disability”.  As such, the employer must show that those questions are “job-related and consistent with business necessity.”  The EEOC explains that this means that the employer must show that it has a reasonable belief, based on objective evidence, that an employee who does not answer the questions, and therefore does not receive the vaccine, will pose a direct threat to the health or safety of the employee or others. Employers must also be careful that the pre-screening questions do not ask about genetic information covered under GINA.  Although the definition of “genetic information” under GINA covers a variety of areas, the most likely avenue of prohibited questioning would be questions related to family medical history.   Importantly if an employee receives a mandatory vaccine from a third-party that does not have a contract with the employer (e.g., the employee’s pharmacy or healthcare provider), the requirements that the pre-screening questions be job-related and consistent with business necessity do not apply.  Moreover, there are not the same GINA concerns in that situation as GINA does not prohibit an employee’s own health care provider from asking questions about genetic information.

If the employer offers the vaccine to employees on a voluntary basis, then the decision to answer the pre-screening questions must also be voluntary.  In that instance, if the employee refuses to answer the questions, the employer can refuse to administer the vaccine, but cannot otherwise retaliate against the employee for failing to answer the questions.

Reasonable Accommodations

As expected, the guidance makes clear that employers have a duty to engage in the interactive process when individuals indicate that they are unable to receive a COVID-19 vaccination because of a disability or a religious-based requirement. 

If the vaccine requirement would exclude someone with a disability, the employer must show that the 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, and that threat cannot be eliminated or reduced by reasonable accommodation.  In determining whether there is a direct threat, the employer must examine the duration of the risk, as well as the nature, severity, likelihood, and imminence of the potential harm.  The EEOC clarifies that a direct threat includes a determination that an unvaccinated individual would expose others in the workplace to the virus.  In that instance, the EEOC concludes that the employer may not exclude the employee from the workplace unless there is no way to provide a reasonable accommodation to eliminate or reduce this risk to an acceptable level.  The EEOC does not offer guidance as to what an “acceptable level” of risk may be, but does state that the number of other employees who have been vaccinated and the amount of contact the employee will have with individuals whose vaccination status could be unknown may impact the undue hardship analysis. If no accommodation is possible, then the employer may exclude the worker from the workplace.  The EEOC, however, emphasizes that the employer will need to consider other accommodations, such as remote work or a leave of absence, before resorting to termination of employment.  The guidance notes that employers may need to obtain supporting documentation about an employee’s disability and possible accommodations as part of the interactive process. 

For religious accommodations, the EEOC cautions that employers should ordinarily assume that an employee’s request for a religious accommodation is based on a sincerely held religious belief and must grant an accommodation absent undue hardship; however, if the employer has an objective basis for questioning the religious nature or sincerity of the belief, the employer may be justified in requesting additional supporting information from the employee.  Given the breadth with which religion has been defined in certain circumstances under Title VII, employers who have concerns on this basis should first consult with counsel.

Takeaways

The above provides some welcome guidance to employers who are considering whether to mandate or encourage the COVID-19 vaccine and seems to encourage vaccination by third parties rather than the employer.  Given that many of the vaccines need to be stored at extremely low temperatures, following such a process may make sense for most employers.  Nonetheless, employers who mandate the vaccine must consider the issues surrounding medical inquiries and the reasonable accommodation analyses, which must be handled on a case-by-case basis.  Employers who are administering the vaccine will also need to determine the order in which employees receive the vaccine; however, the guidance is silent on this point.  Employers should also be mindful that state and local laws may place different, and sometimes more stringent, requirements on employers who wish to mandate vaccines in the workplace.  Additionally, employers who are parties to collective bargaining agreements may have an obligation to bargain with the union over issues surrounding vaccination.  Other considerations may also come into play when determining whether to mandate or encourage vaccination, including potential issues with workers’ compensation, employee morale or employee concerns surrounding the vaccine, and ensuring appropriate staffing, as there are some reports of vaccine side effects which could temporarily make individuals feel ill, leading to workplace absences.  Employers who have questions regarding mandating or encouraging vaccines in the workplace should contact Kristina Grimshaw at kgrimshaw@fglawllc.com or any other attorney at the Firm.

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