The EEOC Updates Employer Guidance to Address COVID-19 Vaccination

Clark Hill PLC

The Equal Employment Opportunity Commission (EEOC) has updated its technical assistance questions and answers, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to address COVID vaccinations. The information can be found in Section K of the guidance. According to the EEOC:

  • Employers may mandate COVID-19 vaccinations. Any COVID-19 vaccination that has been approved or authorized by the Food and Drug Administration (FDA) is not a medical examination under the Americans with Disabilities Act (ADA) and therefore may be administered by an employer or required to be administered by a third party.  The vaccination itself also does not implicate the Genetic Information Nondiscrimination Act (GINA). Prescreening mandatory vaccination questions may elicit information about a disability. Before asking pre-screening questions, an employer would need to have a reasonable belief 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.  
  • If prescreening questions solicit genetic information, an employer cannot ask them. These prescreening questions would violate GINA. An employer should instead require proof of vaccination and request that any genetic information gathered be excluded from the documentation.
  • It is permissible to require proof of a COVID vaccination. Simply asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is NOT a disability-related inquiry. If an employer requires employees to provide proof that they have received vaccination from a pharmacy or their own health care provider, the employer should warn the employee not to provide any medical information as part of the proof to avoid implicating the ADA.
  • Employers may have to accommodate an employee who cannot get a mandatory vaccine because of a disability. If an employee cannot get vaccinated because of a disability, the employer can only terminate the employee if it can show that the unvaccinated employee would pose a direct threat due to significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by an accommodation without due hardship. That accommodation may include telework or leave. 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 and OSHA guidance when deciding whether an effective accommodation that would not pose an undue hardship is available. Employers should also determine if other rights apply under the EEO laws or other federal, state, and local authorities (e.g., FFCRA leave, FMLA leave).
  • Medical information cannot be kept in the personnel file. The ADA requires employers to keep any medical information obtained in the course of a vaccination program confidential.
  • Employers must reasonably accommodate sincerely held religious beliefs so long as doing so does not create an undue hardship. If an employee cannot get vaccinated for COVID-19 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. This does not mean the employer may automatically terminate the worker. Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities. Employers should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. However, if an employer has an objective basis for questioning the religious nature or sincerity of the belief, practice, or observance, the employer would be justified in requesting additional supporting information.
  • Supervisor training is imperative to guard against discrimination and retaliation. Managers and supervisors responsible for communicating with employees about the employer’s vaccination requirement should know how to recognize an accommodation request for an employee with a disability or sincerely held religious belief, observation or practice and know to whom the request should be referred for consideration. Managers and supervisors should be reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting accommodation.

Deciding to mandate a COVID-19 vaccination involves both legal and labor relations issues.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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