New EEOC Guidance Regarding COVID-19 Vaccinations in the Workplace

The U.S. Equal Employment Opportunity Commission (“EEOC”) just updated its technical guidance document, What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws (“WYSK”). The update includes new questions and answers regarding the application of equal opportunity laws in light of the COVID-19 vaccine’s availability.

First, What the Guidance Did Not Say (Yet Did)

The question currently on most employers’ minds is whether they can require their employees to receive the COVID-19 vaccine. The EEOC did not explicitly answer this very significant issue. But it did so implicitly by providing guidance (discussed below) about an employer’s “mandatory” vaccination program and how to respond should an employee refuse the employer’s vaccination “requirement.” Logically, the EEOC would not discuss such issues unless it had concluded that employers may, in fact, legally mandate vaccinations.

ADA and GINA Standards for Employer Distribution of the Vaccine

According to the new guidance, administration of the COVID-19 vaccine by an employer (or by a third party with whom the employer contracts to administer a vaccine) to an employee on either a mandatory or voluntary basis is not a “medical examination” for purposes of the Americans with Disabilities Act (“ADA”). The vaccine’s purpose is merely to protect individuals from the virus and not to collect an employee’s health status or information. Likewise, asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry.

Although the administration of the vaccine is not a medical examination, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability. If the employer administers the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.” Additionally, any employee medical information obtained in the course of the vaccination program must be considered a confidential medical record and not be maintained in the employee’s personnel file.

In addition to the ADA, employers should also ensure that they comply with the Genetic Information Nondiscrimination Act (“GINA”). Title II of GINA prohibits employers from asking any questions of employees relating to their genetic information, which includes questions regarding the immune systems of family members. As a result, employers distributing the vaccine themselves should refrain from asking such questions during pre- or post-vaccination screenings.

ADA and Title VII Issues Regarding Mandatory Vaccinations

Employers that implement mandatory vaccination policies must consider how they will comply with ADA accommodation standards when employees refuse to take the vaccine due to a disability. Even if an employer determines that such an employee poses a direct threat to the health or safety of others, the employer cannot exclude the employee from the workforce unless it determines that it cannot reasonably accommodate the employee in a way that eliminates or reduces the risk of exposure. An ADA accommodation is not reasonable if the employer would suffer an “undue hardship,” which the ADA defines as “significant difficulty or expense.”

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be referred for consideration. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. 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 also rely on CDC recommendations when deciding whether an effective accommodation that would not pose an undue hardship is available, but there may be situations where an accommodation is not possible. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.

Likewise, Title VII of the Civil Rights Act of 1964 (“Title VII”) requires employers mandating the vaccine to provide a reasonable accommodation for an employee’s sincerely held religious belief, practice, or observance that prevents the employee from receiving the vaccination. Again, it is not reasonable to require this accommodation when the employer would suffer an “undue hardship.” Title VII is much more lenient than the ADA in that it defines undue hardship as being more than a de minimis cost or burden on the employer and not “significant difficulty or expense.”