The FDA’s rollout of COVID-19 vaccinations has given hope to many employers that we may finally be witnessing the horizon of the pandemic. But this good news comes with a few side-effects, including the question of whether employers can require, or even encourage, their employees to get vaccinated.
To that end, on December 16, 2020, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding the COVID-19 vaccinations in the workplace and the interplay with other employment laws.
Most significantly, the EEOC guidance makes clear that employers are legally allowed to mandate vaccines before employees are permitted to return to work, provided the employer makes accommodations for employees with certain disabilities and sincerely held religious beliefs.
Medical Accommodation Under Mandatory Vaccination Policy:
The Americans with Disabilities Act (“ADA”) permits employers to have an employment 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, if such a standard tends to screen out individuals with a disability—something mandatory vaccination could do—then the employer must show that the unvaccinated employee would pose a substantial risk of harm to others that cannot be eliminated or reduced by reasonable accommodation. To make this determination, employers should conduct an individualized assessment of four factors: (1) the duration of the risk; (2) the nature of the severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
The EEOC indicated that a “direct threat” would include an unvaccinated employee who exposes other employees to the COVID-19 virus. If such an employee cannot be vaccinated due to a disability, the employer can exclude the employee from the workplace if there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce the risk caused by the unvaccinated employee.
If the threat caused by the employee cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace. However, all other federal, state and local EEO laws and employee rights will need to be taken into account before such an employee can be automatically terminated. This may include providing telework, and if no such work is available, to continue to provide those eligible with leave under the Families First Coronavirus Response Act or other employer policies.
Employers must also engage in the interactive process to explore available accommodations. The EEOC made clear that the 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. Employers may rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available.
Religious Accommodation under Mandatory Vaccination Policy:
Employers must also make accommodation for employees who refuse the vaccine for sincerely held religious beliefs, practices, or observances, unless the accommodation would place more than a de minimus cost or burden on the employer. The EEOC defines religion broadly and an employer should ordinarily assume that an employee’s expressed religious belief is sincerely held unless the employer has an objective basis for questioning either the religious nature or sincerity of the belief, practice, or observance. Like the medical accommodation, where there is no reasonable accommodation possible, then the employer may lawfully exclude the employee from the workplace. Termination is an option provided all other applicable federal, state and local EEO laws are followed.
Medical Examinations and Questioning Regarding Disabilities:
The ADA limits an employer’s ability to conduct medical examinations and request medical information from employees. The EEOC guidance clarifies that the vaccination itself is not a “medical examination” under the American’s with Disabilities Act (“ADA”). As such, if a vaccine is administered to an employee by an employer for protection against COVID-19—whether the vaccination is administered by the employer or a third-party—the employer is not seeking information about an employee’s impairments or current health status which would otherwise be prohibited under the ADA.
However, pre-screening vaccinations questions may implicate the ADA’s provision on disability-related inquiries as such questions are likely to elicit information about a disability. Because of this, the EEOC guidance clarifies that employers administering the vaccine must show that any pre-screening questions asked to employees are “job-related and consistent with business necessity.” The EEOC guidance indicated that, 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.” Employers can avoid the risk of eliciting disability-related information altogether by either: (1) requiring employees to be vaccinated by their own medical provider (or any third party not affiliated with the employer), or (2) offering the vaccination on a voluntary basis.
The EEOC guidance clarified that simply asking an employee to show proof of receipt of a COVID-19 vaccination is not a “disability-related” inquiry under the ADA, because it is not likely, by itself, to elicit information about an employee’s disability. However, the EEOC guidance warns employers to be careful with follow-up questions which could elicit information about a disability. A question as simple as “why haven’t you been vaccinated?” could trigger a disability disclosure.
COVID-19 Vaccines and the Genetic Information Nondiscrimination Act (“GINA”):
Under Title II of 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, or (3) disclose genetic information except in six narrow circumstances.
The EEOC guidance clarified that administering a COVID-19 vaccination to employees or requiring employees 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. Certain COVID-19 vaccines use mRNA technology, which has raised questions regarding whether such vaccines would violate GINA. However, the EEOC guidance cites the CDC’s explanation that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” As such, requiring employees to get vaccinated, using mRNA technology or otherwise, naturally does not violate GINA’s prohibition on using, acquiring, or disclosing genetic information.
However, similar to the ADA’s limitations on medical examinations addressed above, pre-vaccination screening questions could implicate GINA if they solicit genetic information, such as family member’s medical histories.
The Labor and Employment attorneys at Weintraub Tobin continue to wish you and your family good health during these challenging times. If we can assist you in any of your employment law needs, feel free to reach out to us.