EEOC’s Guidance (FAQs) on COVID-19 Vaccinations – Updated December 16th
The EEOC, on December 16th, issued updated Technical Assistance Questions and Answers (FAQs) addressing the questions that are top of mind with most employers regarding vaccinations and what employers will need to know and do to protect their workforce, re-build the workplace and follow the various laws and guidance.
It is the stated position of the EEOC that: “The EEO laws, including the ADA and Rehabilitation Act, continue to apply during the time of the COVID-19 pandemic, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19
The EEOC has added Section K “Vaccinations,” consisting of nine FAQs to go along with the 63 existing questions dating back to March 17th. All employers should review and become familiar with the full text of the FAQs which can be found here:
What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws | U.S. Equal Employment Opportunity Commission (eeoc.gov)
The new issues addressed in the December 16th update are (briefly) summarized here. Please review the entire EEOC update in order to develop a policy and process, as this is just a summary:
K.1 Is the administration of a vaccine a “medical examination” for purposes of the ADA?
No – 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. However, employers are cautioned: “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.’”
K.2 Are pre-vaccination/screening questions subject to the ADA standards for disability-related inquiries?
Yes. Pre-vaccination medical screening questions are likely to elicit information about a disability. The employer must show that these disability-related screening inquiries are “job-related and consistent with business necessity.” Exceptions could be if the vaccination is offered on a voluntary basis and the pre-screening questions are also voluntary, or if the employee receives an employer-required vaccination from a third party that does not have a contract with the employer.
K.3 Is asking or requiring an employee to show proof of receipt of a vaccination a disability-related inquiry?
No. Simply 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. However, employers should be careful with any follow up questioning.
K.4 Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines?
The FDA has a responsibility to inform recipients that it has authorized the emergency use of the vaccine and of the known and potential benefits and risks, the extent to which such benefits and risks are unknown, that they have the option to accept or refuse the vaccine, and of any available alternatives to the product. More information is available on the FDA’s EUA page.
K.5 What if an employee indicates they are unable to receive a vaccination because of a disability?
An employer may have a “qualification standard” including a “requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” However, If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, 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 physically entering the workplace, but 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. Further, managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation or retaliate against an employee for requesting an accommodation.
K.6 How should an employer respond if an employee indicates they are unable to receive a vaccination because of a “sincerely held religious practice or belief?”
Once informed, 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. Ordinarily the employer is expected to believe the employee’s claim, unless there is an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, in which case the employer would be justified in requesting additional supporting information.
K.7 What 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?
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.
K.8 Is Title II of the Genetic Information Nondiscrimination Act (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?
No. This 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.
K.9 Does asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicate Title II of GINA?
Possibly. 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.