The US Equal Employment Opportunity Commission (EEOC) recently updated its COVID-19 guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws (the EEOC guidance), to address questions raised under various federal employment discrimination laws by the availability of COVID-19 vaccinations. This alert discusses five key takeaways from the EEOC guidance and related legal issues employers should consider in the context of 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 a threshold matter, it is important to note the EEOC guidance confirms that the ADA allows an employer to have “a safety-based qualification standard, such as a vaccination requirement” and further confirms that an employer reasonably could determine, depending on the circumstances, that an unvaccinated individual poses a direct threat to the health and safety of others in the workplace. Absent from the EEOC guidance, however, is explicit confirmation that employers can mandate vaccines authorized for emergency use, such as the Pfizer and Moderna vaccines, as opposed to vaccines that have been tested more rigorously and granted full licensure by the Food and Drug Administration.
1. The COVID-19 vaccination does not constitute a medical examination under the ADA.
A medical examination under the ADA is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” The EEOC guidance states that, “[i]f 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 medical examination.”
Furthermore, as reflected in the EEOC guidance, administering a COVID-19 vaccination to employees does not implicate GINA “because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of ‘genetic information’ as defined by the statute.”
2. Pre-vaccination medical screening questions are subject to the ADA standards for disability-related inquiries.
Although the administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate the ADA’s restrictions on disability-related inquiries, particularly where the employer requires an employee to receive the vaccination, and it is administered by the employer (or a third party with whom the employer contracts to administer a vaccine). More specifically, if the employer administers the vaccine, it generally must show that any such pre-screening questions 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 that employee or others.
There are, however, two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. First, if an employer has offered a vaccination to employees on a voluntary basis (i.e., employees choose whether to be vaccinated), the ADA requires that 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 may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions. Second, 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 ADA restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.
It should also be noted that “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.” In this regard, according to the EEOC guidance, “GINA does not prohibit an individual employee’s own health care provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information. If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof. As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.”
3. Requesting proof that an employee received a COVID-19 vaccination is not a disability-related inquiry.
According to the EEOC guidance, “[s]imply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry,” as there are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. However, if the employer asks follow-up questions, such as asking why an employee did not receive a vaccination, it might elicit information about a disability and would be subject to the ADA standard that such questions be “job-related and consistent with business necessity.” The EEOC guidance further indicates in this regard that, if employers require proof of receipt of a COVID-19 vaccination from a pharmacy or health care provider, employers may want to warn employees not to provide any medical information as part of the proof in order to avoid implicating the ADA.
Also, for the same reasons that administering a COVID-19 vaccination to employees does not implicate GINA, requiring employees to provide proof they have received a COVID-19 vaccination also does not implicate GINA.
4. 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.
The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, according to the EEOC guidance, “if a safety-based qualification standard, such as 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.’”
The EEOC guidance further indicates that employers should conduct an individualized assessment of the following 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, and (4) the imminence of the potential harm. “If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee 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 this risk so the unvaccinated employee does not pose a direct threat.” If the employer determines “there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace.” Significantly, however, excluding the employee from the workplace “does not mean the employer may automatically terminate the worker,” and instead, employers should determine whether “any other rights apply under the EEO laws or other federal, state, and local authorities.”
5. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship.
The EEOC guidance provides an example of remote work as a potential reasonable accommodation to an employee’s request to be exempt from a vaccination requirement, noting it is “the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s policies.”
The interactive process required under these circumstances “should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.” The EEOC guidance notes that “[t]he prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration,” and the EEOC guidance further indicates that “the facts about particular job duties and workplaces may be relevant.” Employers should consider CDC recommendations and Occupational Safety and Health Administration standards and guidance when deciding whether an effective accommodation that would not pose an undue hardship is available.
Similarly, if an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation unless it would pose an undue hardship. “[B]ecause the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests a religious accommodation, and 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.” If an employee cannot comply with a mandatory vaccine policy because of a sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. Note, again, however, that “[t]his does not mean the employer may automatically terminate the worker.”
If you would have any questions regarding the content of this alert, please contact Shaleem Yaqoob, associate, at syaqoob@barclaydamon.com, or another member of the firm’s Labor & Employment Practice Area.
We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.