EEOC Publishes Questions and Answers About COVID-19 Vaccine Administration
On Wednesday, December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) added a new section to its ongoing list of questions and answers related to COVID-19. The new questions aim to educate employers and employees about how the Americans With Disabilities Act (“ADA”), Title VII’s anti-religious discrimination provisions and the Genetic Information Non-Discrimination Act (“GINA”) apply during this newest phase of the COVID-19 pandemic that has begun with the availability of vaccines. The “guidance” provided by the EEOC in these new Questions and Answers is littered with pitfalls for employers who will be trying to negotiate a return to normal workplace conditions in the next several months as various COVID-19 vaccines are rolled out. The vaccine questions are in Section K of the EEOC Q&A document.
ADA, GINA and Vaccinations
Mandated Vaccinations. Employers who administer vaccines in the workplace or are using third-party vendors may need to ask questions of vaccine recipients as part of the process to ensure there are not medical reasons that would prevent recipients from receiving the vaccination. Even though the questions are necessary per the vaccine administration procedure, the EEOC says that the questions may implicate ADA requirements that medical inquiries be “job-related and consistent with business necessity.” Some employees may also wish to decline to receive the vaccine, let alone refuse to answer the necessary questions.
In either of these instances, what can an employer that wishes to mandate vaccines do? The common sense answer would seem to be that the refusing employee needs to be excluded from the workplace. But the EEOC warns that employers, in order to exclude employees from the workplace, must reasonably believe, based on objective evidence, that an employee who declines to answer pre-screening questions or receive a vaccination will pose a direct threat to the health or safety of herself or himself or others in order to exclude the employee from the workplace.
Direct Threat. Under the ADA, employers may establish a “qualification standard” that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If the vaccination requirement screens out or tends to screen out an individual with a disability, in order to avoid liability for a discrimination claim under the ADA, 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. There are four factors to review to determine whether a direct threat exists for purposes of the ADA:
Duration of risk
Nature and severity of potential harm
Likelihood that potential harm will occur; and
Imminence of potential harm
If an employer determines that an individual who cannot or will not be vaccinated due to disability poses a direct threat, the employer cannot exclude the employee from the workplace – or take any other action – unless there is no way to provide a reasonable accommodation that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. If there is a direct threat and it 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. The employer may need to provide remote work options or may need to place the employee on a leave of absence depending upon the then-current CDC guidance on the expected duration of the pandemic.
Unrelated Third-Party Administration of Mandated Vaccinations. If an employee gets his or her 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 “job-related and consistent with business necessity” restrictions on disability-related inquiries do not apply to the pre-vaccination medical screening questions.
Voluntary Vaccinations. Disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement if an employer has offered vaccinations to employees on a voluntary basis. In those cases, the ADA requires that employees’ decisions to answer pre-screening, disability-related questions also must be voluntary. If an employee declines to answer these questions, the employer may decline to administer the vaccine but may not retaliate against, intimidate or threaten the employee for refusing to answer any questions.
The landscape around the interaction between ADA and mandated vaccines is a challenging terrain and a significant level of analysis and interaction may be required in order to decide how to proceed for employers who wish to mandate COVID-19 vaccinations.
A few of the issues addressed in the new Questions and Answers are less complicated:
The vaccine administration itself (putting aside the pre-vaccine questions) is not a medical examination under the ADA.
Employers may require employees to provide proof of vaccination. Asking that employees do so is not considered a disability-related inquiry that might be restricted under the ADA nor do such requirements violate GINA. But employers should not be tempted to require employees to say why they cannot provide proof of vaccination as that type of question may be considered a medical inquiry subject to the restrictions discussed above.
Title VII and Vaccinations
Religious-Based Vaccine Refusals. Some employees have sincerely held religious beliefs against vaccinations. In such cases, the employer must provide reasonable accommodation for a religious belief, practice or observance unless it would pose an undue hardship as having more than a very minor cost or burden on the employer. Because the definition of religion is broad and protects beliefs, practices and observances with which the employer may be unfamiliar, employers should ordinarily assume that requests for religious accommodation are based on sincerely held religious beliefs. If an employer has an objective basis to question either the religious nature or sincerity of a particular belief, practice or observance, the employer may request additional supporting information.
If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice or observance, and no reasonable accommodation is possible, then an employer may exclude the employee from the workplace. This does not mean the employer may automatically terminate the worker and, if appropriate, other accommodations may need to be provided such as telework (if available) or as discussed above, a leave of absence.
This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.