On December16, 2020, the EEOC issued its first guidance for employers on COVID-19 vaccinations in the workplace. Below is a summary of the question and answer guidance.
- Is the administration of a COVID-19 vaccine by an employer (or third-party on behalf of an employer) a “medical examination” for purposes of the American with Disabilities Act (ADA)?
No. The vaccination itself is not a medical examination because an employer who administers a vaccine to an employee to protect against contracting COVID-19 is not seeking information about an individual’s impairments or current health status.
However, pre-screening medical questions asked of an employee are subject to ADA standards for disability-related inquiries. As such, questions should be “job-related and consistent with business necessity” to ensure compliance with the ADA’s provision on disability-related inquiries.
- Is asking an employee for proof of a COVID-19 vaccination a disability-related inquiry?
No. Proof of receipt of a COVID-19 vaccine alone is not likely to elicit information about a disability and therefore not a disability-related inquiry. To avoid implicating the ADA, employers may want to warn employees not to provide any medical information as part of the certification.
- How should an employer who requires vaccinations of its employees respond to an employee who indicates that they are unable to receive a COVID-19 vaccine because of a disability?
The same as any other employee requesting an accommodation. Under the ADA, an employer may exclude an employee from the workplace if the employee poses “a direct threat to the health or safety of individuals in the workplace” and there is no reasonable accommodation that would eliminate or reduce the risk to a level where the unvaccinated employee does not pose a direct threat.
In order to determine whether an employee poses a direct threat, employers should conduct an individual assessment of the situation based on four factors: 1) duration of risk; 2) nature and severity of potential harm; 3) likelihood of potential harm to occur; and 4) imminence of harm. According to the EEOC, “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 a direct threat exists that cannot be reduced to an acceptable level, an employer may exclude the employee from the workplace but must still conduct an individualized assessment to determine whether a reasonable accommodation would allow the employee to perform the essential functions of the job absent undue hardship to the employer. Such accommodations may include telework or leave.
Employers may rely on CDC guidance and OSHA COVID specific resources to assist with making these assessments.
- How should an employer who requires vaccinations of its employees respond to an employee who indicates they are unable to receive a COVID-19 vaccine because of a religious belief?
Employers should engage in an interactive process to determine whether there is a reasonable accommodation that will allow the employee to perform the essential functions of the job absent undue hardship to the employer. If there is no reasonable accommodation possible, then it may be lawful to exclude the employee from the workplace which again does not mean automatic termination of employment. Options such as a leave and telework should be explored.
- How is GINA implicated?
Administering a COVID-19 vaccine or requiring employees to provide proof of vaccine 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.
Pre-vaccination questions, however, may elicit information about genetic information, such as questions about the immune systems of family members. If screening checklists for the COVID-19 vaccine (not yet released) include such questions, the EEOC suggests that employers may want to request poof of vaccinations instead of administering it themselves.