Just as the first batches of the COVID-19 vaccine are being distributed, the Equal Employment Opportunity Commission (EEOC) issued long-awaited guidance for employers regarding how to implement vaccines in a manner consistent with the Americans with Disabilities Act (ADA). (Here is a link to the EEOC’s guidance issued on December 16, 2020.) Importantly, the EEOC shed light on several unsettled issues critical to the vaccine, including whether employers may mandate that their employees receive the vaccine and how to treat medical information secured in connection with any employer-sponsored vaccinations. Although we expect that the guidance will be updated as more facts become available regarding the efficacy of approved vaccines and perhaps based on different policy priorities adopted by President-Elect Biden’s Administration, we wanted to summarize the key takeaways for all employers considering whether to institute mandatory or voluntary vaccination policies in the workplace.
As noted in the guidance, COVID-19 vaccines are currently only approved through the Emergency Use Authorization (EUA) process of the Food and Drug Administration (FDA). This emergency authorization, which is different from the FDA’s normal and much longer approval process, requires that individuals considering the vaccine be informed that they have the option of declining the vaccine and be apprised of the benefits and risks of the vaccine. The EEOC, however, did not state, as it easily could have, that employers cannot institute mandatory vaccine policies. Instead, the EEOC encouraged the offering of voluntary vaccine programs (as discussed below), and simply reiterated that disability and religious accommodations need to be factored by employers. We note that accommodations should not be an issue under a voluntary vaccination program, as persons could just “opt out” in lieu of seeking accommodations that could be tested and denied based on the individual facts.
The EEOC’s guidance notes that, according to the CDC, health care providers should ask certain questions before administering any COVID-19 vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination. If employers provide the vaccine (or contract with a separate company to provide it on their behalf), then the pre-vaccination medical screening questions are subject to ADA standards for disability-related inquiries, except as noted below. For mandatory vaccination programs, this means that questions must be job-related and consistent with business necessity. According to the EEOC, “[t]o 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.” Importantly, if vaccinations are part of an employer’s voluntary program, or if the employee receives the vaccine from a third party that has not contracted with the employer (e.g. their healthcare provider), then the EEOC has stated that these ADA restrictions do not apply to the screening questions. In so doing, the EEOC has more than gently encouraged employers to pursue voluntary vaccination policies instead of mandating vaccinations (without saying that the latter is per se problematic under the ADA).
The EEOC guidance also articulates that employers may have to make exceptions from any mandatory vaccine policy for employees who have disabilities or who object to being vaccinated based on sincerely held religious beliefs. Accordingly, if employees refuse to be vaccinated for either stated reason, employers cannot automatically exclude the employee from the workplace. Instead, employers would then be tasked with assessing whether the employee’s lack of vaccination would pose a direct threat to the workplace and whether there are other reasonable accommodations that could alleviate any threat. Employers need not take all requests on an employee’s word, and may generally request that the employee provide documentation supporting any exception requests for disability-related or sincerely held religious reasons. We note that Title VII traditionally has provided no protection for obligations based on political or philosophical objections to vaccines, understanding that state law (not in Georgia) then conceivably could apply to limit termination rights.
The Genetic Information Nondiscrimination Act of 2008 (GINA), prohibits genetic information discrimination in employment. In its guidance, the EEOC explains that pre-screening of employees could elicit information about genetic information, such as questions regarding the immune systems of family members. According to the EEOC, “[i]f the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA. However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.”
Under the new guidance, the EEOC states that employers may ask employees to provide proof of receipt of a COVID-19 vaccination because it is not a disability-related inquiry under the ADA. The EEOC cautions, however, that “subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be ‘job-related and consistent with business necessity.’”