On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued its first direct guidance for employers regarding COVID-19 vaccines that have been approved or authorized by the Food and Drug Administration (FDA). This guidance provides direction for employers considering vaccination programs in anticipation of more widespread availability of the COVID-19 vaccine. The new EEOC guidance addresses the following issues:
- Whether an employer may make the vaccine mandatory or voluntary;
- What exceptions must be made for employees who object to taking the vaccine for various reasons; and
- Questions regarding underlying health conditions with regard to administering the vaccine.
Mandatory Vaccinations
The EEOC guidance provides that employers may implement and enforce COVID-19 vaccination policies for employees, with certain exceptions. Employer policies must comply with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other workplace laws. Notably, the guidance does not explicitly state that mandatory vaccines are permitted but provides the scenario where a worker poses a “direct threat” to themselves or others without being immunized, as a permissible basis for mandatory vaccinations.
Inability to Receive Vaccination Due to Disability
The ADA permits an employer to have a qualification standard, such as a vaccination requirement, that includes a requirement that “an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, if this requirement screens out or tends to screen out an individual with a disability, the employer must show that without the vaccination, the employee poses “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.” (29 C.F.R. 1630.2(r).) In determining whether a direct threat exists, employers must assess the following four factors: (1) duration of the risk; (2) nature and severity of the potential harm; (3) likelihood that the potential harm will occur; and (4) imminence of the potential harm.
Inability to Receive Vaccination Due to Religious Belief
An employer on notice that an employee is prevented from receiving the vaccination due to his or her sincerely held religious belief, practice, or observance must provide a reasonable accommodation unless it would pose an undue hardship under Title VII of the Civil Rights Act. The EEOC guidance provides that the employer should ordinarily assume that an employee’s request is based on a sincerely held religious belief. However, if there is an objective basis for questioning either the religious nature or the sincerity of the belief, practice, or observance, the employer may request additional information supporting the request.
No Exemption or Reasonable Accommodation Available
If an individual cannot be vaccinated due to a disability or sincerely held religious belief and therefore poses a direct threat at the worksite, the employee can only be excluded from the workplace if there is no reasonable accommodation that would eliminate or reduce the risk of the direct threat. Further, the employer must determine if the employee is protected by any other EEOC regulations or other federal, state, or local laws prior to terminating the employee.
Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute undue hardship (significant difficulty or expense) to the employer. This process should include determining whether supporting documentation about the disability or sincerely held religious belief is necessary and considering accommodation options in light of the nature of the workforce and employee’s position.
Title II of GINA Is Not Implicated For Employer-Required COVID-19 Vaccination
Under Title II of the Genetic Information Nondiscrimination Act (GINA), employers may not: (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment; (2) acquire genetic information except in six narrow circumstances; and (3) disclose genetic information except in six narrow circumstances.
The EEOC guidance provides that requiring employees to get the COVID-19 vaccine, even a vaccine that uses mRNA technology, 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 Medical Screening Questions Are Subject to ADA Standards
In general, for purposes of the ADA, the COVID-19 vaccine itself is not a “medical examination.” However, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries (inquiries that are likely to elicit information about a disability). If the employer administers the vaccine, pre-screening questions must be “job-related and consistent with business necessity.” To meet this standard, an employer needs to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and receives no vaccination, would pose a direct threat to the health or safety of her or himself or others.
In addition to the above, disability-related screening questions must meet the following requirements:
- If any employer offers a vaccination on a voluntary basis, then the ADA responses to pre-screening, disability-related questions must also be voluntary. (42 U.S.C. 12112(d)(4); 29 C.F.R. 1630.14(d).) If an employee decides not to answer, the employer may decline to give the vaccine but may not retaliate against, intimidate, or threaten the employee for their refusal.
- If the employer makes the vaccination mandatory, but the employee receives it from a third party that is not contracted with the employer (e.g., a pharmacy), the ADA restrictions on disability-related inquiries do not apply to the pre-vaccination medical screening questions.
Any medical information obtained from an employer’s vaccination program must be kept confidential.
Reliability of EEOC Guidance
While the EEOC’s guidance is helpful and carries some persuasive value, it is important to remember that this guidance is not legally binding in federal courts nor is it binding on the courts and administrative agencies in California on the application of the state’s disability and discrimination laws. Businesses and employers need to make informed decisions regarding what type of vaccination policy, if any, is appropriate for their specific circumstances and unique needs.
Questions
If you have any questions regarding this Legal Alert, please contact one of the attorneys in Kronick’s Labor and Employment team.