January 29, 2021 EEOC’s Newly Issued COVID-19 Vaccination Guidance
KEEPING YOU INFORMED…
The U.S. Equal Opportunity Commission (“the EEOC”), which is the federal agency responsible for enforcing the Americans with Disabilities Act (“the ADA”) and Title VII of the Civil Rights Act (“Title VII”), has recently amended its pandemic-related Q&A (“the Q&A”) to address employer’s rights and responsibilities with respect to COVID-19 vaccinations. Below is a summary of the EEOC’s guidance.
Voluntary, Employer-Administrated COVID-19 Vaccinations
Employers may administer vaccinations to employees who volunteer to receive it and/or they may encourage their employees to get vaccinated by the employer or by a third-party (e.g., a pharmacy).
While the Americans with Disabilities Act (“the ADA”) limits when an employer may require a medical examination, the EEOC has opined that an employer administering a vaccine to employees would not violate that law because the “vaccination itself is not a medical examination.”
Importantly, as the Q&A notes, according to the Centers for Disease Control and Prevention (“the CDC”), “health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason that would prevent the person from receiving the vaccination.” These pre-vaccination medical screening questions are likely to elicit information about a disability. Therefore, 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. It may not, however, retaliate against, intimidate, or threaten the employee for refusing to answer any questions.
Mandatory Employee COVID-19 Vaccinations
As a general rule, the ADA does not prohibit employers from requiring employees to receive a vaccination. There are two different ways this may occur: The employer can mandate that the employee receive a vaccination either from: (1) a third-party administrator; or (2) by the employer or an agent of the employer. The rules are different in each case.
Third-party Administered Vaccinations
As a general rule, an employer can mandate that employees receive a vaccination from a third-party provider as long as this third party is not hired by, or affiliated with, the employer (i.e., a pharmacy, employee’s doctor, urgent care facility). If an employer requires proof of a third-party vaccination, the EEOC suggests that employers warn employees not to provide medical or genetic information as part of the proof.
Further, asking employees follow-up questions, such as why they did not receive a vaccination, may elicit information about a disability. Therefore, these questions can only be asked if they are “job-related and consistent with business necessity.”
As noted above, where the employer (or its agent) is administering the vaccine, any pre-vaccination medical screening questions “are likely to elicit information about a disability.” Therefore, the employer cannot require an employee to answer these questions unless the employer can show that it has a reasonable belief, based on objective evidence, that the employee who does not answer the questions and, as a result does not receive a vaccination, will pose a “direct threat” to the health or safety of the employee or others. (See below for more information about what constitutes a “direct threat.”)
If a vaccination requirement screens out, or tends to screen out, disabled individuals, 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.” The Q&A directs employers to 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. The Q&A makes clear that 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.” We recommend that you contact us for assistance before determining that an unvaccinated employee poses a direct threat.
If an employer determines that an individual who cannot be vaccinated due to a disability poses a direct threat, the employer cannot necessarily exclude the employee from the workplace, or take any other action, unless there is no other way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat. These accommodations may include:
- An option to work remotely;
- Leave pursuant to other laws or employer’s existing leave policy; or
- A continuation of existing COVID-19 protocols (g., masks, social distancing, and/or plastic barriers).
Employers should rely on CDC recommendations when considering whether an effective accommodation is available.
Employers should also be mindful of their requirement to accommodate employees with a “sincerely held religious belief, practice, or observance” that prevents them from receiving a vaccination. Pursuant to Title VII of the Civil Rights Act, an employer must provide a reasonable accommodation for an employee with a religious-based objection, unless the accommodation would result in an “undue hardship” for the employer. Courts have defined “undue hardship” pursuant to Title VII as imposing “more than a de minimis cost or burden on the employer.”
If you have any questions regarding the EEOC’s new guidance on vaccination policies, please contact Adam S. Ross (email@example.com), Michelle A. Mahabirsingh (firstname.lastname@example.org) or one of our other attorneys at 631-694-2300.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
Attorney Advertising: Prior Results Do Not Guarantee A Similar Outcome.
© Lamb & Barnosky, LLP 2021
 The whole Q&A is available at: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.