The Equal Employment Opportunity Commission (“EEOC”) updated the EEOC COVID-19 guidance with information on vaccinations on December 16, 2020. The guidance focuses on potential questions regarding vaccinations under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination Act (“GINA”).
The short answer is, yes, an employer can require employees to receive a COVID-19 vaccination that has been approved or authorized by the Food and Drug Administration (“FDA”). In fact, an employer can even administer the COVID-19 vaccination at the worksite. However, employers must be prepared to respond to employees who indicate they are unable to receive a COVID-19 vaccination because of a disability and/or sincerely held religious belief.
ADA and Vaccinations
While an employer can administer the COVID-19 vaccination to its employees, there are potential ADA implications. While the administration of the vaccination by an employer is not a “medical examination” for purposes of the ADA, pre-screening vaccination questions are likely to elicit information about a disability. Therefore, if these questions are asked by an employer or a contractor on the employer’s behalf, the employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.”
The EEOC offers two circumstances in which disability-related screening questions can be asked without needing to satisfy this standard: (1) if the employer offers the COVID-19 vaccination on a voluntary basis and (2) if an employee receives an employer-required vaccination from a third party that does not have a contract with the employer. Asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a “disability-related inquiry.” As such, employers that want to require COVID-19 vaccinations should consider simply requesting proof of receipt of a COVID-19 vaccination without any additional medical information, rather than administering the vaccination at the worksite, to avoid implicating the ADA.
Even if an employer requires the COVID-19 vaccination, an employee might indicate that he/she is unable to receive the vaccination because of a disability under the ADA. While the ADA allows an employer to protect the health and safety of individuals in the workplace, employers should go through the interactive process under the ADA with employees who make this claim to determine if a reasonable accommodation can eliminate or reduce the risk of substantial harm that an unvaccinated individual potentially poses.
Title VII and Vaccinations
The EEOC also discusses potential issues surrounding religious beliefs and vaccinations under Title VII. An employee might indicate that a sincerely held religious belief, practice, or observance prevents him/her from receiving the COVID-19 vaccination. In that case, an employer must provide a reasonable accommodation unless it would pose an undue hardship under Title VII. Under Title VII, an “undue hardship” is one that has more than a de minimis cost or burden on the employer.
If an employee cannot get vaccinated for COVID-19 because of a sincerely held religious belief, and no reasonable accommodation is possible, then it would be lawful for the employer to exclude the employee from the workplace. However, the EEOC cautions that this does not mean the employer may automatically terminate the worker.
GINA and Vaccinations
Administering the COVID-19 vaccination to employees or requiring employees to provide proof of vaccination does not implicate GINA. However, if the pre-screening questions ask about genetic information, GINA could be implicated.
Contact Cavitch Employment Attorneys
Are you an employer considering instituting a mandatory COVID-19 vaccination requirement? Contact Cavitch employment attorneys Max Dehn, [email protected], Komlavi Atsou, [email protected], and Madilyn Maruna, [email protected].