With at least two COVID-19 vaccines recently approved by the FDA – and given different views on who can or wants to get them in the coming months – employers are now considering whether and to what extent they will get vaccinations for them employees can vaccinate. Some clarity on these much debated topics was given in the form of the Equal Employment Opportunity Commission (EEOC) COVID-19 guidance issued on December 16, 2020.
The vaccination guidelines complement the EEOC’s existing COVID-19 guidelines for employers, which were first issued in March 2020. The most recent guidance focuses primarily on the interface between a vaccination mandate and the Americans with Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act of 1964 (Title VII).
First of all, it was made clear in the EEOC guidelines that vaccination is not regarded as a “medical examination”. By simply administering the vaccine to protect employees from contracting COVID-19, employers will not receive any information about the health of employees or conduct a medical examination. However, pre-screening questions, which CDC guidelines may require to determine if a medical reason prevents a person from being vaccinated, may exceed the limit of the ADA rule that prohibits disability-related inquiries, as such questions are likely to be informational in relation to a person’s potential disability.
One way for employers to avoid a possible violation of the ADA rule is to have a third party unaffiliated with the employer (e.g. a pharmacy) ask the questions before the screening and give the vaccine. An employer may require employees to provide evidence that they received the vaccine, but should warn employees not to include sensitive medical information in such evidence.
If the employer gives the vaccine directly, there are two alternative options. One is to offer voluntary vaccination, which in turn makes answering disability-related questions voluntary. On the other hand, if an employer-administered vaccination is to be mandatory – which is most likely for healthcare employers – the employer must demonstrate that any disability-related screening is “job-related and consistent with business need. ”This requirement is met if the employer, on the basis of objective evidence, believes that the worker’s refusal to answer questions and thereby receive the vaccine is a“ direct threat ”to the health of the worker or others.
There is two possible exceptions to a vaccination mandate, specifically based on (1) disability and (2) sincere religious belief.
If an employee refuses to be vaccinated because of a disability, the employer must demonstrate that the employee poses a direct threat because “there is a significant risk of materially affecting the health or safety of the individual or other person through reasonable precautions cannot be eliminated or reduced. ”In such a situation, the employer must assess whether the employee is a“ direct threat ”by taking into account: (1) duration of risk; (2) the nature and extent of the potential damage; (3) the likelihood of harm; and (4) how immediate the potential harm is. Ultimately, if the employee poses a direct threat to the workplace, the employer must examine the possibilities of accommodating the employee – for example by allowing teleworking. Only in the absence of reasonable accommodation can the employer exclude the employee from the job, and even then, the employer must consider whether other federal, state or local laws provide additional protection before dismissing the employee.
The second exception to the vaccination mandate is based on the requirement that employers must make reasonable provision for a sincere religious belief. Such placement is owed unless it represents “unreasonable hardship”, which is marked as more than “de minimis costs or burden for the employer” according to Title VII. Unless there is an objective basis for the employer to question the sincerity of the employee’s religious beliefs, it is advisable not to question its authenticity.
Finally, it is important that employers – especially during the pre-screening – do not ask questions that the genetic information of an employee could generate in violation of GINA.
While employers may mandate vaccinations, such decisions should be carefully considered. It is important that employers provide adequate staff training to handle all accommodation requests through a fair and structured interactive process. In addition, all information related to an employee’s potential disability or request for accommodation must be kept confidential.
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