EEOC Guidance on COVID-19 Vaccines

By Carissa Davis

The Equal Employment Opportunity Commission (the EEOC) issued Question & Answer Guidance (the Guidance) for employers implementing COVID-19 vaccination policies.

The Guidance explains that vaccination itself is not a medical examination under the Americans with Disabilities Act (ADA). However, prescreening vaccination questions for mandatory vaccination programs may implicate the ADA’s provisions on disability-related inquiries, which may only be made if the questions are “job-related and consistent with business necessity.” To meet this standard, the employer must have a reasonable belief, based on objective evidence, that an employee who does not answer the questions (and therefore does not receive a vaccination) will pose a direct threat in the workplace. These considerations about prescreening questions do not arise if (a) the vaccination is optional for employees or (b) the employee receives the vaccine from a third party such as a hospital or pharmacy. Merely asking for proof of vaccination will not constitute a disability-related inquiry, but employers should neither ask for nor accept other medical information accompanying proof of receipt.

The Guidance also explains that the COVID-19 vaccination does not result in “genetic information” being acquired or disclosed. Requiring vaccinations, therefore, does not violate the Genetic Information Nondiscrimination Act (GINA). However, like the ADA analysis, prevaccination screening questions may elicit genetic information, including information about the manifestation of disease or disorder in the employee’s family medical history. Again, employers might be well-advised to have employees obtain the vaccinations from hospitals or pharmacies.

Once the vaccine is available, employers may exclude employees from the workplace if the employee is not vaccinated, but if the employee indicates the s/he cannot be vaccinated because of a disability, employers will have to determine whether the unvaccinated individual poses a direct threat to the workplace and whether the individual can be accommodated by work-from-home or other arrangements. Employers and employees should engage in a flexible, interactive process to find a reasonable accommodation.

Under Title VII, employers are also obligated to provide reasonable accommodations for an employee’s sincerely held religious beliefs, practices, or observances. The Guidance recommends employers should presume requests for religious accommodations are based on sincerely held religious beliefs, unless the employer has an objective basis for questioning an employee’s assertion. Unlike the ADA, Title VII only requires reasonable accommodations that impose no more than a de minimis cost on the employer.

Other rights may apply under the EEO laws of federal, state, and local authorities.

As with all COVID-19 guidance, the situation continues to evolve. Before implementing a vaccination program, employers should consider contacting counsel to minimize the risk of litigation. As with many issues, an ounce of prevention is worth a pound of cure.