With COVID-19 vaccines now being distributed in the United States, there have been a number of questions about the responsibilities and rights of employers and employees. On Wednesday, December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 guidance to include a section addressing COVID-19 vaccines. The new guidance answers various questions about COVID-19 vaccinations and compliance with the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).
Requesting Proof of Vaccination
The EEOC guidance provides that asking or requiring employees to show proof of receiving a COVID-19 vaccination is not a disability-related inquiry under the ADA. Accordingly, employers may request or require employees to provide proof of receiving a vaccine. The EEOC cautions, however, that other related questions, such as asking employees why they did not receive a vaccination, may qualify as a medical inquiry under the ADA and therefore would be permitted only when such inquiry is “job-related and consistent with business necessity.”
The EEOC’s guidance confirms that employers can require that employees receive a COVID-19 vaccine as a condition of employment, but there are two exceptions where employers may be required to accommodate an employee who cannot receive the vaccine. The first exception is when an employee has a specific medical reason that prevents the employee from receiving the vaccine. The second exception is when an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccine.
If the employer determines a reasonable accommodation cannot be provided without posing an undue hardship, the employer may lawfully exclude the employee from the workplace as a result of being unable to receive the vaccine. The EEOC cautions, however, that “[t]his does not mean the employer may automatically terminate the worker.” The employer may need to consider other accommodations, such as unpaid leave, until the employer can safely bring the employee back into the workplace.
According to the guidance from the Center for Disease Control, healthcare providers are supposed to ask certain medical questions prior to administering the COVID-19 vaccine. The EEOC guidance states that while the vaccination itself is not a medical exam, the screening questions are likely to elicit disability-related information, and therefore, are considered a medical exam if administered by the employer.
The EEOC explains that if an employer requires an employee to receive a vaccination, which is administered by the employer or a contractor on behalf of the employer, “the employer must show that these disability-related screening inquiries are ‘job-related and consistent with business necessity.’” The EEOC further clarifies that to meet this standard, the “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.”
By contrast, if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, the EEOC states that the “job-related and consistent with business necessity” requirement does not apply to the pre-vaccination medical screening questions.
Alternatively, the EEOC also notes that employers do not need to meet the “job-related and consistent with business necessity” requirement if vaccinations are offered to employees on a voluntary basis, and employees voluntarily answer screening questions. “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.”
The EEOC clarified that the use of messenger RNA technology (mRNA) in some of the COVID-19 vaccines does not implicate GINA. As background, GINA imposes restrictions on how and when employers may acquire, use, and disclose an employee’s genetic information. COVID-19 vaccines with mRNA, however, do not interact with human DNA in any way. Accordingly, the EEOC concluded that “requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.”
Perhaps the most significant takeaway is that employers can lawfully require employees to receive COVID-19 vaccinations, provided they make appropriate accommodations for employees that cannot receive the vaccine due to medical or religious reasons. The EEOC’s guidance also clarifies what vaccine-related information employers can request.
The New York State Division of Human Rights, the agency responsible for enforcing New York’s employment discrimination laws, has not provided any explicit guidance on COVID-19 vaccines for employees, but the EEOC’s guidance appears to be consistent with New York’s employment discrimination laws.
Regardless of whether an employer decides to implement a mandatory vaccination policy, vaccine-related issues are likely to arise. Accordingly, employers should carefully consider and assess these issues to ensure appropriate procedures and safeguards are in place to comply with ADA and Title VII requirements.
This alert does not purport to be a substitute for advice of counsel on specific matters.
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