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EEOC Issues Updated Technical Assistance Publication for Guidance on Vaccination Workplace Requirements

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) posted an updated and expanded technical assistance publication addressing questions arising under federal equal employment opportunity laws related to the COVID-19 pandemic. The updates to this document give guidance to employers and employees about how a COVID-19 vaccination interacts with requirements of federal laws including the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and the Genetic Information Nondiscrimination Act (GINA). As employers contemplate vaccination workplace requirements, they should carefully review the guidance as to how to do so without violating these federal nondiscrimination laws.

ADA

The ADA prohibits an employer from requiring a medical examination or making inquiries of an employee as to whether the employee has a disability or as to the nature or severity of the disability unless it is job-related and consistent with business necessity. The EEOC COVID-19 guidance confirms that the vaccine itself is not a “medical examination” for purposes of the ADA. The guidance confirms that asking an employee or requiring them to show proof of receipt of a COVID-19 vaccination does not violate the ADA, in and of itself. Employers are warned that follow-up questions may elicit information about a disability which would implicate the ADA and advised to warn employees not to provide disability-related information to their employer.

If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and therefore it is not a prohibited medical examination. However, certain pre-vaccination medical screening questions are likely to elicit information about a disability. According to the EEOC guidance, this means that such questions, if asked either by the employer or by a contractor on the employer’s behalf, are “disability-related” under the ADA. To avoid an ADA violation in the context of employer-provided COVID-19 vaccinations, the EEOC presents several options.

• If the employer makes the vaccination mandatory:
  • and uses its own contracted provider — it must show that these screening inquiries are “job-related and consistent with business necessity.” To meet this standard, an employer must have a reasonable belief, based on objective evidence, that an employee who does not answer the questions, and, therefore does not receive a vaccination, will pose a direct threat to the health or safety of themselves or others.
  • but has the employee use their own chosen provider — the ADA’s “job related and consistent with business necessity” restrictions on disability-related inquiries does not apply.
• If the employer wishes to make the vaccination voluntary, then the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine, but it must not retaliate against, threaten or intimidate the employee.

The guidance also addresses how employers should respond to an employee that indicates they are unable to receive the COVID-19 vaccine because of a disability. The employer must be able to show that an unvaccinated employee would pose a direct threat due to a “significant risk” of substantial harm to the health or safety of themselves or others that cannot be eliminated or reduced by a reasonable accommodation. Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists.

1. The duration of the risk
2. The nature and severity of the potential harm
3. The likelihood that the potential harm will occur
4. The imminence of the potential harm

Furthermore, an employer cannot exclude that person from the workplace or take any other action unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk. Such reasonable accommodations include working remotely. The guidance states that employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship.

Title VII

It is possible that some employees may refuse vaccination on the basis of a sincerely held religious practice, observance or belief protected by Title VII. The guidance states that the employer must provide a reasonable accommodation to this employee unless it would pose an undue hardship (more than a de minimis cost or burden on the employer) under Title VII.

GINA

Under Title II of GINA, employers may not:

• Use genetic information to make employment decisions.
• Acquire genetic information except in six narrow circumstances.
• Disclose genetic information except in six narrow circumstances.

The guidance states that administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a vaccination does not violate Title II of GINA. However, as with disability information, pre-vaccination screening questions may elicit information about genetic information. As a review, GINA defines “genetic information” to include information about an individual’s genetic tests, information about a family member’s genetic tests, information about family medical history, information about requests for or receipt of genetic services, information about participation of the individual or a family member in clinical research that includes genetic services, and genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology. If the pre-vaccination screening does include such questions, the EEOC suggests that employers may want to request proof of vaccination instead of administering the vaccine themselves. Similar to under the ADA, an employer asking for proof of vaccination should warn employees not to provide genetic information as part of the proof.

For further information, the entire publication, entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” can be found here. Additionally, the EEOC has posted all of its materials related to COVID-19 at https://www.eeoc.gov/coronavirus.

Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.