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COVID-19 VACCINATIONS UPDATE

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COVID-19 VACCINATIONS UPDATE

January 28, 2021

As the distribution of the COVID-19 vaccinations become more readily available, there are no doubt many questions that will arise.  In answer to some of these questions, employers should look to state, local and federal guidance including the EEOC, the Dept of Fair Employment & Housing and the Department of Industrial Relations.  For now, we have some guidance from the U.S. Equal Employment Opportunity Commission (EEOC).  As the vaccine becomes ready for wide-spread distribution, more guidance will likely be issued.

EEOC PUBLISHES FAQ’S ON THE VACCINATION

On December 16, 2020, the EEOC updated their Frequently Asked Questions publication entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws Technical Assistance Questions and Answers” to address some vaccine related concerns.  The EEOC has specifically stated that the EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidelines and suggestions. 

In response to the most commonly asked question of whether an employer can mandate employees get the COVID-19 vaccination once it becomes readily available, the EEOC said YES.

Excerpts of the FAQ’s are summarized below. The full FAQ’s can be found here:

ADA and Vaccinations – Medical Examination & Pre-Screening Inquiries
  1. Is the administration of a COVID-19 vaccine to an employee by an employer (or by a third party with whom the employer contracts to administer a vaccine) a “medical examination” for purposes of the ADA? (12/16/20)

No.  The vaccination itself is not a medical examination.  A medical examination is “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.”  If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it 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.”  See Question 2 below.

  1. If the employer requires an employee to receive the vaccination from the employer (or a third party with whom the employer contracts to administer a vaccine) and asks pre-screening questions, are these questions subject to the ADA standards for disability-related inquiries? (12/16/20)

Yes.  Pre-vaccination medical screening questions are likely to elicit information about a disability.  This means that such questions, if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA and the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”

To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.  See Question 5. below for a discussion of direct threat.

There are two circumstances in which disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement.

    1. If an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated), the ADA requires that 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 may not retaliate against, intimidate, or threaten the employee for refusing to answer any questions.
    2. If an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.

            The ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

  1. Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)

No.  Requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. Subsequent questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.”

If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

ADA and Title VII Issues – Disability & Religious Based Objections
  1. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a disability?(12/16/20)

The ADA allows an employer to have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.”  If a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a direct threat due to 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.”  

Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: (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.

A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.  If this occurs, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.

If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from the workplace, but the employee should not automatically be terminated.

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.

  1. If an employer requires vaccinations when they are available, how should it respond to an employee who indicates that he or she is unable to receive a COVID-19 vaccination because of a sincerely held religious practice or belief? (12/16/20)

Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.

Because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.  If, however, an employee requests a religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

  1. What happens if an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief?(12/16/20)

If an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace.  This does not mean the employer may automatically terminate the worker.  Employers will need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

Genetic Information Nondiscrimination Act (GINA) and Vaccinations
  1. Is GINA implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination?(12/16/20)

No.      Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. However, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances.

  1. Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA?(12/16/20)

Pre-vaccination medical screening questions are likely to elicit information about disability, and may elicit information about genetic information, such as questions regarding the immune systems of family members.  It is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.

If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA.  However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.

If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer may want to warn the employee not to provide genetic information as part of the proof.  As long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and therefore not unlawful under GINA.  See 29 CFR 1635.8(b)(1)(i) for model language that can be used for this warning.

What Should I Do Now?
  • Determine your vaccination policy. If you intend to require employees to be vaccinated, you should draft a policy to be implemented  once the vaccines become more readily available.
  • Be prepared for employees to claim an exemption from the vaccine mandate based on a disability or their religious beliefs.
  • Be prepared to engage in the interactive process to respond to requests for accommodations for disability and/or religious belief exemptions. Employers have a legal obligation to provide an accommodation for an employee’s disabilities and/or sincerely-held religious beliefs.
  • Reasonable accommodation considerations should include whether the employee can report to work without being a “direct threat” to the health and safety of others without the vaccine. If not, then remote work and other accommodation options must be considered
  • Employers should train managers to comply with the EEOC’s guidance which states: “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.”

As the guidance issued by the state and federal agencies is regularly changing, as is the medical information known about COVID-19, this memo is provided solely as a reference tool to be used for informational purposes and should not be construed or interpreted as providing legal advice related to any specific case or cases.

This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2021.