Last week, the U.S. saw its first administrations of the Pfizer/BioNTech COVID-19 vaccine, which is the first vaccine to receive Emergency Use Authorization from the Food and Drug Administration (FDA). In light of this approval, and likely FDA approval of more COVID-19 vaccines, the U.S. Equal Employment Opportunity Commission (EEOC) issued new guidance for employers on December 16, 2020. This guidance addresses issues employers will face soon regarding federal workplace bias laws and COVID-19 vaccination policies that employers may implement in the coming months.
Employers have the option to request, and possibly, mandate vaccinations. However, a clear-cut rule mandating everyone to get it or excluding anyone who does not get the vaccination is not feasible as there are legal disability and religious protections afforded to employees that must be taken into consideration. Below is a breakdown of the significant takeaways from the EEOC’s new guidance:
COVID-19 Vaccinations are Not Medical Examinations; however, Associated Pre-Screening Inquiries May Be Considered Medical Examinations
- The EEOC has stated that a COVID-19 vaccine itself is not considered a medical examination under the Americans with Disabilities Act (ADA). A medical examination exists when there is an inquiry, or “seeking”, of information about an individual’s physical or mental impairments or health. When an employer is administering the vaccine to an employee for the purpose of protecting against contracting COVID-19, the employer is not seeking this information and the administration of the vaccine, by itself, is not a medical examination.
- However, employers that are planning to administer vaccines on their premises (or contract with a third party to do so) should be aware that any pre-screening questions that are asked of employees may fall under the ADA’s medical examination definition because, in many cases, such questions are likely to reveal information about a disability. Therefore, employers must be able to demonstrate that these inquiries are “job-related and consistent with business necessity.” As the EEOC’s guidance explains, this means that employers “would need to 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 her or himself or others.”
- The guidance outlines 2 exceptions in which disability-related questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement:
- If the employer offers vaccinations to employees on a voluntary basis, then the ADA requires that the employee’s decision to answer these pre-screening inquires also must be voluntary.
- If the employees receive employer-required vaccinations from a third party that does not have a contract with the employer (e.g., if the employer requires the employee to obtain the vaccination from a pharmacy or their own health provider), then the restrictions on these inquiries do not apply.
Proof of Vaccination
The new guidance states that merely requiring employees to produce proof that they received the vaccination is not considered a disability-related inquiry. However, asking follow-up questions, such as “why” the employee did not receive the vaccination, may elicit information about a disability – thereby invoking the above “job-related and consistent with business necessity” standard again. The EEOC recommends that employers warn employees not to provide any medical information as part of the proof of receipt of the vaccination in order to avoid potentially implicating the ADA.
Employee’s Objections to Receiving COVID-19 Vaccinations
Under the guidance, when an individual objects to receiving the vaccination due to disability or a sincerely held religious belief, employers need to try providing the employee with a reasonable accommodation or exempt them from the mandatory vaccination requirement completely. However, if a reasonable accommodation is not possible (which is a determination that should be carefully evaluated with legal counsel if possible), employees may be prevented from coming to the worksite but still may not be “automatically terminated.”
- Due to disability:
- Before preventing an employee with a disability-based objection from entering the workplace, the employer must conduct an individualized analysis in determining whether the unvaccinated employee poses a “direct threat” to the health and safety of themselves or others. There are four factors employers should assess: 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, then the employer must attempt to provide reasonable accommodations.
- The employer cannot exclude the employee or take other action unless there is no way to provide a reasonable accommodation, absent undue hardship, that would sufficiently eliminate or reduce the direct threat risk.
- Even if the direct threat cannot be reduced to an acceptable level, the employer can exclude the employee but still must consider other possible accommodations (like teleworking or taking FMLA leave) before terminating an employee.
- Due to sincerely held religious belief:
- Once an employer is on notice of a sincerely held religious belief, practice, or observance that prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the employee’s religious belief unless the accommodation would pose an “undue hardship” under Title VII.
- An “undue hardship” has been defined to require proof of having more than a de minimis cost or burden on the employer.
GINA Protections
The EEOC guidance similarly confirmed that the administration of the vaccine, or requiring proof of vaccination, does not implicate protected information under the Genetic Information Nondiscrimination Act (“GINA”). However, again, pre-vaccination medical screening questions may elicit information about genetic information, such as family medical history. Accordingly, caution should be again exercised in this regard.
The Bottom Line
Employers have finally received some of the clarifications they needed to implement voluntary or mandatory COVID-19 vaccination policies now that the vaccine will become available in the coming months. Employers can offer vaccinations on a voluntary or mandatory basis subject to their compliance with legal guidelines. However, if employers want to consider making vaccinations mandatory, employers should consider requiring employees to receive the vaccine from third parties (like health care providers and pharmacies) that do not have a contract with the employer and request proof of vaccination instead of administering it themselves. Even then, employers must follow the disability and religious accommodation requirements under the ADA and Title VII. The guidance does not address local and state laws, but employers should also keep those in mind as well.
If you have questions about creating or implementing a vaccination policy for your workplace, FMJ’s HR & Employment attorneys can help. Please contact Shannon McDonough at shannon.mcdonough@fmjlaw.com, Heidi Carpenter at heidi.carpenter@fmjlaw.com, or Natolie Hochhausen at natolie.hochhausen@fmjlaw.com.
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