EEOC Issues New Guidance Addressing COVID-19 Vaccines for Employers

On December 16, 2020, the Equal Opportunity Employment Commission (EEOC) updated a series of questions and answers on its website with respect to COVID-19 under various equal employment opportunity laws. The updated guidance, found under Section K. Vaccinations, addresses issues that may arise with employer vaccination policies under the Americans With Disabilities Act (ADA), Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination Act (GINA). This guidance is helpful for an employer who is considering the adoption of a mandatory vaccination policy for its workforce as well as employers who are interested in taking steps to encourage or incent employees to receive the vaccine.

Vaccinations Under the ADA

The ADA generally prohibits an employer from requiring medical examinations or making disability-related inquiries with respect to its current employees unless the medical examination or inquiry is "job-related and consistent with business necessity." There is an exception for medical examinations or disability-related inquiries that are part of a voluntary wellness program. The EEOC provided helpful clarification to employers on when this provision of the ADA is triggered with respect to COVID-19 vaccinations.
 

• First, the vaccination itself is not a "medical examination" for purposes of the ADA. A medical examination is a test or procedure given by a health care professional that seeks information about an individual's physical or mental impairments or health. Since a vaccine is not designed to collect this information, it is not a medical examination and does not, by itself, implicate this provision of the ADA.
• Second, although a vaccination is not a medical examination, the pre-vaccination medical screening questions are "disability-related" for purposes of the ADA because they are likely to elicit information about a disability. Importantly, however, this provision of the ADA is not triggered in the following instances:
  • Employers may offer the vaccination to employees on a voluntary basis, provided the employer does not retaliate against, intimidate, or threaten the employee for refusing to answer the pre-vaccination screening questions (and, therefore, not receive the vaccine).
  • Employers may require employees to receive the vaccine from a third party who is not under contract with the employer, such as a retail pharmacy or the employee's medical provider, in which case the third party is making the disability-related inquiries, and not the employer. This approach would be permitted.
• Third, asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. Because there are many reasons why an employee may not be vaccinated, requesting proof of receipt of the vaccine is not likely to elicit information about a disability. The same cannot be said for follow-up questions. Employers who want to avoid triggering this provision of the ADA should be careful about asking for additional information and should specifically tell employees not to provide any medical information in response to the request for proof. It is particularly important to ensure employees with supervisory or management responsibilities receive appropriate training regarding their obligations under the ADA and how they should (or should not) respond to employees who volunteer information about why they have chosen not to be vaccinated.

In sum, unless the employer intends to administer the vaccine to its own employees, it can implement a vaccination policy without having to demonstrate that receiving a vaccine is job-related and consistent with business necessity.

The EEOC guidelines do not currently address whether employers who are health care providers can mandate that their employees receive the vaccine through them. Before providing the vaccine, such employers should determine if requiring the vaccine, and therefore making the disability-related inquiries, is job related and consistent with business necessity. We have addressed this analysis, in part, along with an issue that may arise with the Emergency Use Authorization (EUA) for the vaccines (also discussed below), in our previous article about mandating COVID-19 vaccines. Notably, the EEOC guidelines do not comment on the legal risks that a mandatory vaccination policy creates due to the FDA's approval of the COVID-19 vaccines pursuant to the EUA process. The EEOC simply referred to the FDA's obligation to ensure that the vaccine is administered to individuals who are informed of their right to accept or refuse the vaccine.

Vaccinations Under GINA

GINA restricts employers from collecting or using genetic information in employment decisions. The EEOC provides that administering the vaccine to employees or requiring proof that an employee has received the vaccine does not implicate GINA because it does not involve the request or collection of genetic information. However, similar to the analysis under the ADA, if the pre-screening vaccination questions seek any genetic information (including family medical history), then the employer's inquiry would not be permitted under GINA, if part of the employer's mandatory vaccination policy. In this case, the questions would need to be asked by a third party such as a pharmacy or the employee's own health care provider, and the employer should also warn employees against providing any genetic information in response to a request for proof of receipt of the vaccine.
 

Mandatory vs. Voluntary Policies

Reasonable Accommodations Under the ADA and Title VII

If an employer will require vaccinations when they are available, the ADA and Title VII require that the employer provide reasonable accommodation, absent undue hardship, to employees who indicate they are unable to receive a COVID-19 vaccination due to a disability or sincerely held religious belief.

The EEOC covered these issues in Questions K.5 – K.7. of the updated guidance, which give some level of comfort to employers who are considering a mandatory COVID-19 vaccination policy. The guidance signals that such policies would not categorically violate the ADA or Title VII, as long as the employer considers potential accommodations.

The guidance first discusses in some detail the need to provide reasonable accommodations for an individual with a disability who is unable to take the vaccine. The EEOC notes that an employer facing such a situation should first determine whether an unvaccinated employee creates a direct threat to the health or safety of individuals in the workplace. The threat must be a "significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated by reasonable accommodation." The EEOC notes that, after going through a full analysis of the likelihood, duration, severity, and imminence of the harm (which may change as the number of vaccinated individuals increase), employers may conclude that an unvaccinated individual creates a direct threat by his or her potential exposure of others to COVID-19 in the workplace.

Importantly, an employer's analysis cannot end there. The employer must then determine whether there are alternatives—i.e., accommodations—that would eliminate or reduce that risk. If there are no such accommodations that would allow the employee to continue working (like separation from others in the workplace, wearing a mask, etc.), then the employer must consider other potential reasonable accommodations, such as working remotely or leave. Employers must also ensure that their managers recognize and know how to respond to a request for an accommodation or exemption from the vaccine and that they understand the confidentiality requirements under the ADA.

As it relates to Title VII, employers must also provide accommodations to individuals whose sincerely held religious beliefs prevent them from receiving the vaccination. We discussed the definition and determination of a sincerely held religious belief in our previous article on vaccines. An employer must accommodate the sincerely held religious belief unless doing so would pose an undue hardship on the employer, which under Title VII, is anything more than a de minimis cost or burden. If an employer determines the accommodation would create an undue hardship, it should document the reason for the conclusion and consider whether other accommodations are available before terminating the employee's employment.

Interplay with FDA Guidelines Related to Emergency Use Authorization

In Question K.4, the EEOC makes a passing reference to the EUA of COVID-19 vaccines. Under those guidelines, health care providers must notify patients that they have the option to accept or refuse the vaccine.

Employers should consider and address the potential confusion this notification may create for employees who have been mandated by their employer to get the vaccine (particularly those employed by the same health care provider who is giving the notification). In addition, this EUA requirement raises a question about whether claims can be brought against an employer who terminates the employment of an individual for refusing the vaccine. We encourage employers to consult with an attorney before making such a decision.

Offering Employee Incentives for Vaccinations

Many employers may be interested in approaches that encourage and/or incent their employees to get vaccinated as opposed to instituting a mandate. Voluntary programs sidestep the concerns outlined above with respect to the EUA, and they may also work better for employee relations and employee morale. While the EEOC guidance does not specifically address the use of incentives, we believe that it permits voluntary vaccination programs that might offer rewards to employees who choose to voluntarily get vaccinated. If the employee receives the vaccine at a pharmacy or health care provider, the ADA's wellness program rules do not apply and GINA's prohibition on the collection of genetic information is likewise not implicated. Notwithstanding, employers should carefully consider the rewards to ensure that participation is clearly voluntary and not perceived as coercive. Employers could consider rewards such as gift cards or gift baskets or other tokens of appreciation and should be careful to avoid any incentive that may appear punitive or retaliatory against employees who choose not to receive the vaccine. As a reminder, the ADA requires employers to keep any employee medical information obtained in the course of the vaccination program confidential.

The COVID-19 vaccine is both a ray of hope for some and a minefield of employee morale and legal issues for others. Please contact Michael Blickman, Tami A. Earnhart or any other member of our Labor, Employment & Immigration Group to discuss general employment-related matters related to the vaccine (or other COVID-related topics), or Shalina Schaefer or any other member of our Employee Benefits Group related to employee benefits matters related to the vaccine. You can also visit our COVID-19 Resource Center for additional materials.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.