On December 16, 2020, the United States Equal Employment Opportunity Commission (“EEOC”) issued guidance addressing questions related to the administration of the COVID-19 vaccine to their employees. Under this guidance, employers may require their employers to be vaccinated. However, requiring employees to be vaccinated raises multiple legal issues that employers should be aware of.
1. The Vaccine Is Not A Medical Examination
The EEOC guidance confirms that a vaccination is not a “medical examination” within the meaning of the American With Disabilities Act (“ADA”) because the employer “is not seeking information about an individual’s impairments or current health status.” Thus, the administration of the COVID-19 vaccine is not a medical examination that is prohibited by the ADA and, accordingly, employers may require that their employees be vaccinated.
2. Proof of Vaccination
The EEOC guidance also permits employers to require or request that their employees provide proof that they have been vaccinated. Because compliance with such a requirement or request is neither a disability-related inquiry nor likely to reveal information about a disability, requiring or requesting employees to provide proof of vaccination is not prohibited by the ADA. Employers should, however, be aware that related questions, such as asking employees why they were not vaccinated may qualify as a medical inquiry under the ADA and, therefore, would only be permitted when such an inquiry is “job-related and consistent with business necessity.”
3. Inquiries That May Constitute Medical Examinations
While the administration of the vaccine itself is not a medical examination under the ADA, the EEOC notes that “pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.” Thus, employers or third-parties contracted by employers who administer the vaccine to their employees may only ask pre-screening questions when they are “job-related and consistent with business necessity.” As the EEOC states, this means that the employer must have a “reasonable belief” that an employee who refuses to answer the pre-screening questions and, therefore, does not receive the vaccine, will “pose a direct threat to the health or safety of her or himself or others.”
If, however, the employee receives the employer-required vaccine from a third party that does not have a contract with the employer, i.e. a pharmacy or other health care provider, then the ADA’s “job-related and consistent with business necessity” restriction will not apply to the health care provider’s pre-screening questions.
4. Responding To Disabled Employees Who Cannot Receive Vaccination
Some employees may be unable to receive the vaccine because of a disability. In such cases, the EEOC provides that the employer must demonstrate that hiring or retaining an unvaccinated person would pose a “direct threat to the health or safety of individuals in the workplace.” The employer must prove there is 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.” To do so, the EEOC notes that employers should conduct an individualized assessment based on four factors: (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 an employee who is unable to receive the COVID-19 vaccine poses a direct threat, the employer must then engage in the interactive process with the employee to determine whether it is possible to provide a reasonable accommodation to the employee without incurring an undue hardship. As a part of this process, employers should consider whether arrangements can be made to enable the employee to work safely on site; whether the employee can work remotely, the number of other employees who have already received the vaccine, and the amount of contact an employee has with others in the workplace.
5. Responding To Religious Concerns
Similarly, the EEOC, in accordance with Title VII of the Civil Rights Act, also advises that employers must provide reasonable accommodations for individuals who indicate they cannot receive the vaccine due to a “sincerely held” religious belief or practice unless doing so would have “more than a de minimis cost or burden on the employer.” Employers must go through the same interactive process with such employees as they do with employees who cannot be vaccinated because of a disability.
6. Genetic Information Nondiscrimination Act
The EEOC has advised that neither administrating the COVID-19 vaccine nor requiring proof of a COVID-19 vaccine implicates GINA because it does not involve the use or disclosure of genetic information to make employment decisions. However, pre-screening questions that ask about genetic information may violate GINA. To avoid this, employers may want to request proof of vaccine rather than administering the vaccine themselves.
In sum, employers may lawfully require that their employees receive the COVID-19 vaccine and provide the vaccine themselves. However, when considering whether to require employees to be vaccinated or provide the vaccine themselves, employers should be mindful of the restrictions and requirements of the ADA Title VII and GINA, and should put in place appropriate safeguards and procedures to ensure that they are in compliance with these requirements.