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EEOC Releases Guidance on COVID Vaccine: Six Key Employer Considerations

By Katherine L. Wood, Esq.

The end may finally be in sight with the first round of COVID-19 vaccines recently administered to certain groups of people.  As we look forward to a widely available COVID-19 vaccine (and a potential return to normalcy), employers may be considering mandating that their employees get vaccinated.  However, there are important Americans with Disabilities Act (“ADA”), Title VII, and Genetic Information Non-Discrimination Act (“GINA”) implications that employers must consider.

The Equal Employment Opportunity Commission (“EEOC”) has released new guidance to assist employers in remaining compliant with these non-discrimination laws in circumstances involving the COVID-19 vaccine.  Here are six key employer takeaways from the EEOC’s new guidance.

1.     Be wary of vaccine pre-screening questionnaires that could elicit information about a disability.

Medical examinations of employees are barred by the ADA unless they are “shown to be job-related or consistent with business necessity.”  The EEOC guidance tells us that the administration of the COVID-19 vaccine to employees by an employer, or a third party who contracts with the employer, is not performing a medical examination of the employee.  Thus, the administration of the vaccine, by itself, does not violate the ADA.

However, employers should be cautious in administering the vaccination because some pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries.  If the pre-screening questionnaire asks questions that are likely to elicit information about a disability, the employer must show that answering those questions and receiving the vaccine is “job-related and consistent with business necessity.”  To make that showing, the employer must show that employees who do not receive the vaccination pose a direct threat to the health or safety of himself or others.

2.    Consider making receipt of the vaccination voluntary and/or having employees receive the vaccine from their own health providers to sidestep potential discrimination issues.

Employers are not required to satisfy the “job-related and consistent with business necessity” requirement if the employer offers the vaccine on a voluntary basis.  If the employee opts to receive the vaccine, he or she is also voluntarily opting to answer disability-related questions.  In such a situation, the employer is not required to satisfy the disability-related inquiry requirements.

Additionally, if employees receive an employer-required vaccine from a third-party that has not contracted with the employer (such as a pharmacy or health care provider), the ADA “job-related and consistent with business necessity” restriction would not apply with respect to pre-screening questionnaires.

3.     Employers are permitted to request proof of receipt of a COVID-19 vaccination.

Requesting or requiring proof that an employee has received the COVID-19 vaccination is not likely to elicit information about a disability because there are many reasons that might explain why an employee was not vaccinated.  Thus, employers may request or require proof of vaccination without needing to fulfil the “job-related and consistent with business necessity” requirement.

To avoid implicating the ADA, employers should avoid asking follow-up questions to the employee concerning why he or she did not receive the vaccination.  Employers should also ask employees not to provide medical information as part of proof of vaccination.  Follow-up questions or receiving medical information may be seen as eliciting information about a disability, which would implicate the “job-related and consistent with business necessity” requirement.

4.     Tread carefully in requiring  employees to work from home if they cannot be vaccinated due to a disability.

Because requiring employees to obtain a vaccine may tend to screen out individuals with disabilities, employers must show that unvaccinated employee(s) would pose a “direct threat due to a significant risk of substantial harm to the health or safety of the individuals or others that cannot be eliminated or reduced by reasonable accommodation” to lawfully exclude such an employee from the workplace. 

To show a direct threat, employers must analyze the following four factors: duration of the risk, nature and severity of potential harm, likelihood that the potential harm will occur, and imminence of potential harm.  In finding a direct threat, employers may consider the fact that an unvaccinated individual may expose other employees at the worksite to the virus. 

If the employer finds that the unvaccinated employee poses a direct threat, the employer must consider what reasonable accommodations can be provided to the employee to eliminate/reduce the risk.  The traditional “interactive process” under the ADA must be utilized to find a reasonable accommodation.  This involves the employer and employee engaging in a discussion and process to try to find an accommodation that will allow the employee to continue performing his/her job.

Only if no reasonable accommodation exists can the employer exclude the employee from physically entering the workplace. Keep in mind that accommodations could include remote work and that excluding an employee from the workplace may entitle the employee to leave under the FFCRA, FMLA, and/or the employer’s own policies.

5.     Employees who cannot be vaccinated due to a sincerely held religious belief or practice must be offered reasonable accommodations.

Much like the disability-related analysis discussed above, employers must provide reasonable accommodations for religious beliefs, practices, or observance, unless it would pose an undue hardship on the employer.  Only where no reasonable accommodation is possible can the employer exclude such an employee from the physical workplace.

Generally, employers should assume that requests for religious accommodation are based on a sincerely held religious belief, however, if an objective basis exists for questioning the religious nature and/or the sincerity of a particular belief, practice, or observance, the employer may request additional information.

6.     Receipt of the COVID-19 vaccine itself does not implicate GINA but be alert to vaccine pre-screening questionnaires that ask questions about genetic information.

GINA is implicated when employment decisions are made based on an employee’s genetic information.  The COVID-19 vaccination utilizes messenger RNA (“mRNA”) technology and does not interact with human DNA in any fashion.  Thus, GINA is not implicated with respect to the COVID-19 vaccination because it does not involve the use of genetic information.

However, much like the ADA discussion above, pre-screening questionnaire questions may implicate GINA if the questionnaire asks about genetic information.  Employers may wish to request proof of vaccination rather than administering the vaccination themselves (or through a contracted third-party) to avoid GINA implications, as third parties asking such questions does not implicate the statute.  Employers should advice employees not to provide genetic information as part of their proof of vaccination. 

Employers should carefully monitor developments on vaccine supply as well as further laws and guidance from federal, state, and local authorities.  Some situations that might arise from employer-mandated COVID-19 vaccines and the EEOC’s new guidance, such as whether an employee poses a direct threat or when reasonable accommodations must be offered require a specific legal analysis.  Further, we anticipate the guidance on vaccination will evolve in upcoming months. The EEOC guidance does not have the force of law, and it could be impacted by additional changes and court decisions.  In addition, state and local laws could impose different standards. 


For guidance on these issues, or other labor and employment concerns, please contact any member of the Hurwitz & Fine, P.C.’s Employment Practices team at 716-849-8900 or visit our website at www.hurwitzfine.com

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