As we have been watching health care providers and government officials roll up their sleeves to obtain the new COVID-19 vaccines, a key question for employers is whether employers can require their employees to obtain a COVID-19 vaccine when the vaccines become more readily available. On December 16, 2020, the EEOC issued guidance that generally provides a green light for those employers who want to mandate COVID-19 vaccines for their employees, as long as the employer follows existing law under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (“Title VII”), and the Genetic Information Non-discrimination Act (GINA) when administering the program and considering exemptions. Below is a summary of the EEOC’s guidance:
Compliance with the ADA
An employer can mandate vaccinations as they become readily available. However, if a vaccination requirement screens out, or tends to screen out, an individual with a disability, 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.” When determining whether a direct threat exists if there is an unvaccinated employee, employers should conduct an individualized assessment that includes the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm. A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If there is a direct threat that 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. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense).
The EEOC also confirmed that an employer can require an employee to show proof of COVID-19 vaccinations. Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry for ADA purposes because requesting proof of receipt only is not likely to elicit disability information. If an employer requires proof of COVID-19 vaccination from a pharmacy or employee’s own health care provider, the employer may want to warn the employee not to include any medical or genetic information as part of the receipt in order to avoid implicating the ADA or GINA.
If the employer administers the vaccine, it must show that any pre-screening questions it asks employees are “job-related and consistent with business necessity.” To meet this standard, an employer 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. Even if an employer has offered vaccinations to employees on a voluntary basis, the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. If an employee who is volunteering to get the vaccine chooses not 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. Note, however, that if an employee receives an 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 “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.
Compliance with Title VII
If an employee refuses to be vaccinated because of a sincerely held religious belief, practice, or observance, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII. The employer should assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. However, if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.
Compliance with GINA
The EEOC also confirmed that administering a COVID-19 vaccination to employees or requiring an employee to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information.” However, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.
The EEOC has confirmed that employers may mandate the COVID-19 vaccine, assuming that all protections from the ADA, Title VII, and GINA are followed. This still raises challenging questions for employers about whether they want to mandate the vaccine for their employees, how they would structure the logistics, and how a mandatory vaccine program would impact their workforce.
Our employment, health care, government, and business attorneys are available to answer your specific questions about COVID-19 vaccines in the workplace. Please reach out to your Lashly & Baer attorney with any questions. Prepared by attorneys Christopher J. Bedell, Julie Z. Devine, and James C. Hetlage.