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  • MacKenzie Johnson

The EEOC’s COVID-19 Vaccine Update

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” section to include information regarding employer-required COVID-19 vaccines. This information is a good resource for employers and employees given that health care employees are now getting vaccinated. As we get further into 2021 and the vaccine becomes more readily available, employers and employees are likely to have questions about whether employees can be required to get vaccinated as a term or condition of their employment.

The recent EEOC update addresses questions pertaining to the Americans with Disabilities Act (“ADA”), Title VII, and Title II of the Genetic Information Nondiscrimination Act (“GINA”) and COVID-19 vaccines. The EEOC has pointed out that its laws “do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions.” The COVID-19 pandemic is continuously changing, and any information published herein is the most accurate information available at the time. Please refer to the EEOC website for the most up-to-date information.

The administration of a COVID-19 vaccine is not

a “medical examination” for purposes of the ADA.

A “medical examination” is defined as “a procedure or test that seeks information about an individual’s physical or mental impairments or health.” The administration of a COVID-19 vaccine is to protect employees from contracting COVID-19 and not for seeking information about an individual’s impairment. Therefore, it is not considered a medical examination when employers, or a party acting on behalf of the employer, administer COVID-19 vaccines to its employees.

Pre-vaccination medical screening questions are subject to

ADA standards for disability-related inquiries.

The EEOC believes that certain pre-screening questions for the COVID-19 vaccine could implicate protected disability-related inquiries. In order to not violate the ADA’s provisions on disability-related inquiries, the questions employers ask must be “job related and consistent with business necessity.” The employer must have a “reasonable belief, based on objective evidence” that if an employee does not answer these questions to allow them to receive the vaccine that there will be a direct threat to the health and safety of themselves and others.

However, there are two circumstances where employers can bypass the “job-related and consistent with business necessity” requirement. The first is when an employer has offered employees to voluntarily receive the vaccine. If this it the case, the ADA also requires that the employee’s answers to the pre-screening questions must also be voluntary. Here, the employee can refuse to answer the questions and the employer can refuse to administer the vaccine. The employer is prohibited from retaliating against an employee in any way because of this refusal. The second way an employer can bypass the “job-related and consistent with business necessity” requirement is to require employees to receive the vaccine from a third party that is not contracted with the employer.

Requiring proof of receiving a COVID-19 vaccine is not a disability-related inquiry.

The EEOC has stated that requesting proof of receiving the vaccine is not likely to elicit any information regarding a disability. However, an employer who asks an employee why they have not received the vaccine may elicit a response regarding disability. Therefore, asking why must be “job-related and consistent with business necessity.”

It is important to note that if an employer requires proof, the employer should warn the employee to remove all medical information from the receipt. If an employer provides this warning to the employee and the employee fails to remove the medical information, the employer has not violated the provisions in the ADA.

Employer responses to employees not receiving the COVID-19 vaccine due to disabilities.

If an individual cannot receive the COVID-19 vaccine due to a disability, the employer cannot immediately terminate the employee’s employment. 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” to themselves or others. This direct threat must not be able to be mitigated by a reasonable accommodation. The employer must determine whether the employee is a direct threat by looking at the following four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

If the employer determines there is a direct threat, the employer must then provide a reasonable accommodation. The employer and employee should work together throughout the interactive process in order to determine what reasonable accommodation would be appropriate. A reasonable accommodation should not create an undue hardship under the ADA for the employer. During the interactive process, the employer may request supporting documentation about the employee’s disability. The number of employees who have received a COVID-19 vaccine, along with the amount of time the employee will spend working with others, may impact the undue hardship consideration.

If the direct threat is not able to be mitigated by a reasonable accommodation, the employer can prohibit the employee from entering the workplace but cannot automatically terminate the employee. Throughout the year 2020 many employees have been working remotely. Working remotely would be considered a reasonable accommodation in this instance. If working remotely is not feasible, the employee may be able to take leave under the Families First Coronavirus Response Act (“FFCRA”), under the FMLA, or employer’s other policies. It is unlawful for an employer to disclose that an employee is receiving a reasonable accommodation. Likewise, it is unlawful for an employer to retaliate against an employee for requesting a reasonable accommodation.

Employer responses to employees not receiving the COVID-19 vaccine due to

a sincerely held religious practice or belief.

An employer must provide a reasonable accommodation unless it creates an undue hardship due to a sincerely held religious practice or belief under Title VII of the Civil Rights Act. The same process for reasonable accommodations, mentioned above for disabilities, should be used. The employer should “ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” However, if an employer has an objective basis for questioning the sincerity, the employer could then request supporting information.

Title II of GINA is not implicated when an employer requires that an employee provide proof of receiving a COVID-19 vaccine.

GINA makes it illegal for employers to discriminate against employees because of their genetic information. Since the COVID-19 vaccine “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,” GINA is not implicated. The CDC has stated that the vaccine does “‘not interact with our DNA in any way’ and ‘mRNA never enters the nucleus of the cell, which is where our DNA is kept.’”

Title II of GINA may be implicated when an employer asks the employee the pre-vaccination screening questions.

As mentioned above, the pre-vaccination screening questions may elicit information about disability. These questions may also elicit information regarding genetic information (questions about family members). The genetic information GINA was enacted to protect is found here. If the pre-vaccination questions do not involve any of these questions, then GINA is not implicated. Parallel to what is mentioned above, an employer should inform the employee not to provide genetic information as part of proof of receiving the COVID-19 vaccine. If this warning is given, any genetic information received from that proof of receipt of vaccination will not be unlawful under GINA.

Emergency Use Authorizations (“EUA”) for COVID-19 vaccines.

The EUA has allowed the COVID-19 vaccine to be given before all the evidence of effectiveness and safety have been fully established. Employers can learn more about the EUA and the FDA’s obligations here.

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