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EEOC Provides Guidance on Workplace COVID-19 Vaccination | Keenan

• EEOC guidance about how a COVID-19 vaccination interacts with requirements of federal laws
• Options to avoid violating the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and the Genetic Information Nondiscrimination Act (GINA)
• Resources and materials related to COVID-19 and the EEOC guidance

EEOC Provides Guidance on Workplace COVID-19 Vaccination Requirements

The U.S. Equal Employment Opportunity Commission (EEOC) recently posted a technical assistance publication addressing questions about the COVID-19 pandemic. This latest document gives employers and employees guidance about how a COVID-19 vaccination interacts with requirements of federal laws including the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and the Genetic Information Nondiscrimination Act (GINA). As employers develop vaccination workplace requirements, they should carefully review the guidance to avoid violating these federal nondiscrimination laws.

This article is a short summary of the new EEOC guidance. A more detailed analysis is provided in a Keenan Briefing.

ADA

The ADA prohibits an employer from requiring a medical examination, asking an employee whether the employee has a disability, or the nature or severity of the disability, unless it is job-related and consistent with business necessity. The EEOC COVID-19 guidance confirms that the vaccine itself is not a “medical examination” under the ADA, and confirms that asking an employee or requiring them to show proof of a COVID-19 vaccination does not violate the ADA. However, pre-vaccination screening or follow-up questions may elicit information about a disability that could violate the ADA. Employers should warn employees not to provide disability-related information to their employer.

To avoid an ADA violation related to employer-provided COVID-19 vaccinations, the EEOC presents several options:

• If the employer makes the vaccination mandatory:
  • and uses its own contracted provider — it must show that screening inquiries are “job-related and consistent with business necessity.”
  • but has the employee use their own chosen provider — the ADA’s “job related and consistent with business necessity” restrictions on disability-related inquiries does not apply.
• If the employer wishes to make the vaccination voluntary, then the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. If an employee chooses not to answer these questions, the employer may decline to administer the vaccine, but it must not retaliate against, threaten or intimidate the employee.

If an employee states they are unable to receive the COVID-19 vaccine because of a disability, the employer must be able to show that an unvaccinated employee would pose a direct threat due to a “significant risk” of substantial harm to the health or safety of themselves or others that cannot be eliminated or reduced by a reasonable accommodation. Such reasonable accommodations include working remotely.

Title VII

It is possible that some employees may refuse vaccination on the basis of a sincerely held religious practice, observance or belief protected by Title VII. The guidance states that the employer must provide a reasonable accommodation to this employee unless it would pose an undue hardship.

GINA

Under Title II of GINA, employers may not:

• Use genetic information to make employment decisions.
• Acquire genetic information except in six narrow circumstances.
• Disclose genetic information except in six narrow circumstances.

Administering a COVID-19 vaccination to employees or requiring proof they have received a vaccination does not violate Title II of GINA. However, as with disability information, pre-vaccination screening questions may elicit genetic information. If the pre-vaccination screening does include such questions, the EEOC suggests that employers request proof of vaccination instead of administering the vaccine themselves.

EEOC’s entire publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” can be found here. All EEOC materials related to COVID-19 are posted at https://www.eeoc.gov/coronavirus.

About Amy Donovan
Amy is Keenan's Vice President of Legislative and Regulatory Affairs, authoring the firm's Briefings and position papers on legislation, regulation and litigation that have an impact on the firm and its clients.