The EEOC Provides Guidance on the Administration of COVID-19 Vaccines
This week, the Equal Employment Opportunity Commission (“EEOC”) updated its guidance regarding the COVID-19 vaccine and its implications on the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), the Genetic Information Nondiscrimination Act (“GINA”) and other equal employment laws.FN1 The following are key components of the EEOC’s guidance for employers to keep in mind during the roll out of a COVID-19 vaccination:
1. Vaccine Administration: The administration of a Food and Drug Administration (FDA) approved or authorized COVID-19 vaccine is not a “medical examination” for the purposes of the ADA, allowing an employer, or a third-party contractor, to administer the vaccination without violating the ADA.FN2 If an employer administers the vaccine to an employee for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and therefore does not fall within the definition of “medical examination” under the ADA.
Similarly, such vaccine administration would not violate 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 under GINA.FN3 Employers are permitted to ask prescreening questions that relate to the employees’ job and consistent with business necessity, but should not ask questions likely to elicit information about a disability or procure genetic information.
2. Requiring Proof of Vaccination: Employers may require employees to show proof of a COVID-19 vaccination before entering the job site, because “[s]imply 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.”FN4. Employers should not, however, ask why an employee did not receive a vaccination because such an inquiry may elicit information about a disability.
3. Employees Refusing Vaccinations: If an employee refuses or cannot get vaccinated due to a disability or a sincerely held religious belief, an employer must determine whether the unvaccinated employee would “pose a direct threat to the health or safety of individuals in the workplace,” that cannot be eliminated or reduced by reasonable accommodation.FN5 Four factors require consideration to determine whether a direct threat exists:
i. The duration of the risk;
ii. The nature and severity of the potential harm;
iii. The likelihood that the potential harm will occur; and
iv. The imminence of the potential harm.
If the employer determines that a direct threat exists, the employer can exclude the employee from physically entering the workplace but cannot automatically terminate the employee. The employer should determine whether other antidiscrimination laws are implicated, and whether a reasonable accommodation can be made, such as teleworking or taking leave under the Families First Coronavirus Response Act, other leave laws, or the employer’s leave policies.
4. Reasonable Accommodations for Religious Beliefs: Employers are required to provide a reasonable accommodation if an employee’s sincerely held religious belief, practice, or observance prevents them from receiving the vaccination, unless it would pose an undue hardship under Title VII.FN6 The “undue hardship” must have more than a de minimis cost or burden on the employer.
The EEOC’s guidance provides that employers should assume that an employee’s request for religious accommodation is based on a sincerely held belief. However, if 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.FN7
Takeaway
As a COVID-19 vaccination becomes available, employers should ensure compliance with various antidiscrimination laws before requiring employees to get vaccinated or whether to administer the vaccinations themselves. Employers with compliance questions should reach out to an attorney at Campbell Litigation, P.C. for more information.
Footnotes:
FN2: EEOC Guidance, paragraph K.1.
FN3: para. K.8.
FN4: para. K.3.
FN5: para. K.5.
FN6: para. K.6.
FN7: id.