EEOC Issues Updated COVID-19 Guidance Related to Vaccines

December 23, 2020

By: Stephen B. Stern

    With newly developed COVID-19 vaccines being rolled out across the country in an effort to hopefully end the pandemic, the Equal Employment Opportunity Commission (“EEOC”) updated its COVID-19 related guidance, specifically addressing the issue of vaccines as it relates to the Americans with Disabilities Act (“ADA”) and other employment-related statutes.

    One question in the guidance is whether the COVID-19 vaccine or the administration of a COVID-19 vaccine constitutes a “medical examination” under the ADA.  The EEOC stated the vaccine is not a medical examination.  Thus, any vaccine administered by an employer or a requirement by an employer to receive the COVID-19 vaccine does not constitute an improper medical examination under the ADA.

    The EEOC cautioned, however, that pre-screening vaccination questions may implicate the ADA’s provision regarding disability-related inquiries.  A disability-related inquiry is one that is likely to elicit information about an employee’s or applicant’s disability.  To this end, the EEOC noted that if an employer administers the COVID-19 vaccine, the employer must show that pre-screening questions are job-related and consistent with business necessity.  According to the EEOC, an employer will meet this standard if the employee who does not receive the vaccine (because the employee did not answer the pre-screening questions) “will pose a direct threat to the health or safety of her or himself or others.”  

    Pre-screening questions also may implicate the Genetic Information Nondiscrimination Act (“GINA”).  Pre-screening questions may include, for example, inquiries about the immune systems of family members.  If pre-screening questions raise the possibility of inquiring about information prohibited by GINA, employers may reduce the risk of liability by requiring a third-party administer the vaccine to the employee(s) and, if the employer requires proof of vaccination, the employer may want to caution the employee(s) not to disclose genetic information while providing proof of being vaccinated.

    Despite the potential implication of disability-related inquiries, the EEOC noted that there are two circumstances in which disability-related screening questions may be asked without having to satisfy the “job-related and consistent with business necessity requirement.”  The first instance would arise when an employer offers the vaccine to employees on a voluntary basis (i.e., employees choose whether to be vaccinated or not).  In such a scenario, the EEOC would view any employee’s response to a pre-screening question as voluntary and, as such, the employer would not violate the ADA by making a disability-related inquiry (that would otherwise have to be “job-related and consistent with business necessity” in order to avoid liability).  If the employee refuses to answer the pre-screening questions, however, the employer may not retaliate against, intimidate, or threaten the employee for refusing to answer the questions.  The second scenario would arise when an employer requires employees to receive the vaccine from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, as such a scenario would not implicate the ADA’s “job-related and consistent with business necessity” requirement.

    The EEOC guidance also determined that requiring an employee to show proof of receiving a COVID-19 vaccine does not constitute a medical-related inquiry in violation of the ADA and it does not implicate GINA.  Asking an employee to explain why he/she did not receive the COVID-19 vaccine, however, may elicit information about a disability and the employer would need to satisfy the “job-related and consistent with business necessity” requirement.

    If an employer makes it a requirement for employees to receive a COVID-19 vaccine, but an employee advises the employer that he/she is unable to receive the COVID-19 vaccine for reasons related to a disability, the employer must navigate other ADA requirements to avoid a violation.  In this regard, the ADA permits employers to establish qualification standards, including “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  To prevent an unvaccinated employee from returning to work when the employee does not receive the vaccine for disability-related reasons, an employer must show that the unvaccinated employee would pose a direct threat of a “significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  This analysis takes into consideration four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.  By concluding a direct threat exists, an employer necessarily will determine that an unvaccinated individual will expose other individuals at the workplace (e.g., employees, customers, other visitors) to the virus.  The EEOC warned, however, that simply reaching the conclusion that a direct threat exists does not end the inquiry and the employer may not automatically exclude the employee from the workplace without violating the ADA.  Rather, the employer must first determine whether the risk can be mitigated by providing a reasonable accommodation that would not pose an undue hardship.  One such accommodation that should be explored is allowing the employee to work remotely (for more on remote work arrangements, see this prior post).

    If an employee advises an employer that he/she is unable to receive a COVID-19 vaccine due to religious beliefs, just as an employer would have to explore the possibility of a reasonable accommodation under the ADA if the reason for not receiving the vaccine was disability-related, the employer will need to provide a reasonable accommodation (if one exists) to account for the employee’s religious beliefs, provided that the accommodation does not impose an undue hardship.

    Businesses interested in requiring employees to receive COVID-19 vaccines before returning to the workplace should be familiar with the ADA and other employment statute implications and discuss potential ramifications with counsel.