As the approvals of the COVID-19 vaccines are being announced, employers are faced with many questions about how to handle vaccine-related issues in the workplace. This week, the EEOC updated its What You Should Know About COVID 19 and the ADA, the Rehabilitation Act, and Other EEO Laws Technical Assistance Questions and Answers to include questions regarding the COVID-19 vaccine and the applicability of various federal employment laws including the ADA, the Rehabilitation Act, GINA, and Title VII. Below are some highlights:
While the vaccination itself is not considered a medical examination under the ADA, pre-screening vaccination questions, which must accompany such vaccinations, likely are. That is because these pre-screening questions are inquiries likely to elicit information about a disability. As such, if an employer administers vaccines to its employees, these pre-screening questions must be “job-related and consistent with business necessity.” The EEOC addressed several scenarios:
- If an employer requires its employees to receive a vaccine it administers (or that a contractor administers on its behalf), the pre-screening questions must be “job-related and consistent with business necessity.” As such, if an employee refuses to answer the pre-screening questions (and, therefore, does not get the vaccine), an employer cannot take an adverse employment action against the employee unless it can demonstrate that the employee now poses a direct threat to him or herself or others.
- If an employer offers the vaccine to its employees on a voluntary basis, the decision to answer the pre-screening questions also must be voluntary. In this scenario, if any employee refuses to answer the pre-screening questions, the employer may not retaliate against, intimidate, or threaten that employee for that refusal.
- If an employee receives an employer-required vaccine from a third party, not contracted with the employer, the “job-related and consistent with business necessity” restrictions do not apply. While an employer can require documentation that the employee has received the vaccine, if other information is contained on the vaccination record, that information should be redacted before the employee provides the proof to the employer. All information about an employee’s vaccination status must be kept confidential.
- An employer asking for proof of vaccination is not a medical examination. However, if the employer learns the employee did not receive the vaccine, further inquiries by the employer as to “why” may be a disability-related inquiry subject to the ADA’s “job-related and consistent with business necessity” standard.
There has been much debate over whether the FDA’s decision to approve these vaccines under Emergency Use Authorizations (EUA) impacts an employer’s ability to require its employees to receive the vaccine. The EEOC failed to provide any specific guidance other than to state that employers who decide to administer vaccines should review the FDA’s EUA page for more information.
If an employee refuses to receive a vaccine because of a disability, the employer must then determine if that employee, unvaccinated, poses a “direct threat.” However, even if the employer determines the unvaccinated employee does pose a “direct threat,” the employer cannot exclude the employee from the workplace – or take any other adverse employment action – unless no reasonable accommodation is possible that would eliminate or reduce this risk. Such accommodations could include much of what employers were doing pre-vaccine – mandatory masking, social distancing, work from home, etc. We recommend that employers take some time in early 2021, before the full vaccine rollout, to consider how they intend to address these issues and to train and educate their managers and supervisors on how to handle requests for accommodations based on disabilities.
If an employee refuses to receive a vaccine because of a sincerely held religious belief, the employer must provide a reasonable accommodation unless it would pose an undue hardship under Title VII. Under Title VII, an “undue hardship” is having more than a de minimis cost or burden on the employer. An employer should assume the employee’s request for a religious accommodation is based on a sincerely held religious belief unless the employer has an objective basis for questioning either the religious nature of the belief or the sincerity of the employee. In that case, the employer would be justified in requesting supporting information. However, employers are cautioned that the definition of religion under Title VII is extremely broad and is not limited to just organized religions. As with requests for accommodations based on disabilities, we recommend employers take some time in early 2021, before the full vaccine rollout, to consider how they intend to address these issues and to train and educate their managers and supervisors on how to handle requests for accommodations based on a sincerely held religious belief.
Administering a COVID-19 vaccine or requiring proof of vaccination from an employee does not implicate GINA. However, the prescreening questions, which are not yet final, may, depending on what is asked. Until the prescreening questions are standardized and known, it may be wise for employers to require employees to provide proof of vaccination instead of providing vaccination to employees because screening questions asked by the employee’s health care provider do not implicate GINA.
As with many things in 2020, this is a developing story. We expect to learn more about the vaccines and their impact on employers in the coming weeks, and will continue to keep you updated.
If you have any questions regarding this Alert, please contact the author, Rachel Ullrich, partner in our Dallas office at rullrich@fordharrison.com, or any member of our Coronavirus Taskforce. Of course, you can also contact the FordHarrison attorney with whom you usually work.