On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued revised COVID-19 guidance addressing questions related to the administration of COVID-19 vaccinations to employees. Section K of the guidance now addresses several common questions employers have raised with respect to the now-available COVID-19 vaccine. While the EEOC points out that federal employment laws do not prevent employers from following guidelines and suggestions from public health authorities, the administration of vaccines to employees may raise legal issues employers should consider. Here is what you need to know.

Vaccination Is Not a Medical Examination

The EEOC guidance confirms that the “vaccination itself is not a medical examination” within the meaning of the Americans with Disabilities Act (ADA). Thus, the administration of the COVID-19 vaccine is not itself a medical examination prohibited or limited by the ADA.

Other Inquiries May Be a Medical Examination

While the administration of the vaccine is not a medical examination under the ADA, the EEOC points out that “pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.” If pre-screening questions constituting a medical inquiry are asked of employees, the company may ask the pre-screening questions only where they are “job-related and consistent with business necessity.” As the EEOC explains, this means “an employer would need to 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 to the health or safety of her or himself or others.”

• • An exception to this requirement exists where the vaccine program is voluntary and therefore the employee’s decision to answer pre-screening questions is voluntary. Where an employee chooses not to answer pre-screening questions in a voluntary program, the employer may decline to administer the vaccine but may not retaliate against the employee for refusing to answer the pre-screening questions.
  • The EEOC notes another exception exists when the employee receives an employer-required vaccine “from a third party that does not have a contract with the employer, such as a pharmacy or other healthcare provider.” This would apply, for example, when the employer requires employees to obtain vaccinations from third-party medical providers in the community as the vaccine becomes available, but the employer does not directly contract with the providers to administer the vaccine to employees. In such a situation, the EEOC states that the ADA’s “job-related and consistent with business necessity” restriction would not apply to the healthcare provider’s pre-screening questions.

Confidentiality Requirements

Under any circumstance, when the employer asks pre-screening questions, the responses to those questions should be maintained as confidential information according to the provisions of the ADA. Employers utilizing company or contract healthcare personnel to administer vaccinations also may wish to consider the extent to which employee-provided information and vaccination records may be covered by the Health Insurance Portability and Accountability Act (HIPAA).

Requiring Proof of Vaccination

The EEOC guidance provides that asking or requiring employees to show proof of receiving a COVID-19 vaccination is not a disability-related inquiry under the ADA. Thus, employers may request or require employees to provide proof of receiving a vaccine from another provider; however, the EEOC cautions that other related questions, such as asking employees why they did not receive a vaccination, may qualify as a medical inquiry under the ADA and therefore would be permitted only when such inquiry is “job-related and consistent with business necessity.”

Responding to Employees’ Disability-Related Concerns

The updated EEOC guidance addresses how employers that mandate vaccinations should respond to employees who indicate that they are unable to receive a vaccination due to a disability. In short, the EEOC advises that an employer may require that an individual employee “not pose a direct threat to the health or safety of individuals in the workplace,” but when such a requirement tends to screen out individuals with disabilities, “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 EEOC notes that employers should conduct an individualized assessment of the following four factors: “the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.”

• • If the employer determines there is a direct threat posed by an employee being unable to receive the vaccination, the employer then should determine whether it is possible to provide a reasonable accommodation to the employee without incurring an undue hardship. The EEOC advises that employers should engage employees “in a flexible, interactive process to identify workplace accommodation options.” The EEOC notes that one factor may be the prevalence of employees in the workplace who receive the vaccine.
  • If the employer determines a reasonable accommodation cannot be provided without posing an undue hardship, the employer, in most circumstances, may lawfully exclude the employee from the workplace as a result of being unable to receive the vaccine.

Responding to Employees’ Religious Objections

Similarly, the EEOC advises that employers mandating vaccines must provide reasonable accommodations to employees who indicate they are unable to receive the vaccine due to a sincerely held religious belief or practice, unless providing an accommodation would pose an undue hardship under Title VII of the Civil Rights Act. In the context of religious objections under Title VII, the EEOC notes that courts have defined “undue hardship” to include anything “having more than a de minimis cost or burden on the employer.”

GINA Does Not Apply

Finally, the EEOC guidance confirms that neither administering a COVID-19 vaccine to employees nor requiring employees to provide proof of a vaccination is prohibited by the Genetic Information Nondiscrimination Act (GINA). Some employers have raised concerns over whether certain COVID-19 vaccine candidates that use messenger RNA technology (mRNA) would be prohibited by GINA. Because the U.S. Centers for Disease Control and Prevention (CDC) has explained that mRNA vaccines “do not interact with our DNA in any way,” the EEOC concludes that requiring employees to receive an mRNA vaccination is not prohibited or governed by GINA.

Key Takeaways

In sum, the updated EEOC guidance provides long-awaited clarification for employers contemplating employee vaccination strategies. The bottom line is that, according to the guidance, employers may lawfully offer COVID-19 vaccinations to employees on a voluntary or mandatory basis, though mandatory vaccine programs implicate certain restrictions and requirements under the ADA and Title VII, such as the need to provide reasonable accommodations for disabilities and sincerely-held religious beliefs and to determine the permissibility and scope of other vaccine-related pre-screening questions. Employers may wish to carefully consider and assess these and related issues prior to implementing a COVID-19 vaccination program in order to ensure appropriate procedures and safeguards are in place to comply with ADA and Title VII requirements.