As the first wave of COVID-19 vaccinations are being administered across the United States, employers are considering whether to mandate and/or administer the COVID-19 vaccine to employees.  On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) released updates to “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Technical Assistance Questions and Answers publication, addressing potential concerns with vaccine administration and anti-discrimination laws the EEOC enforces.

The EEOC’s updated guidance offers direction regarding employer-mandated vaccinations, accommodations for employees who cannot be vaccinated due to a disability or sincerely held religious belief, and certain implications of pre-vaccination medical screening questions under the Americans with Disabilities Act (“ADA”) and Title II of the Genetic Information Nondiscrimination Act (“GINA”).

Pre-Vaccination Screening Inquiries

While the guidance makes clear that administration of a COVID-19 vaccination to an employee itself does not constitute a “medical examination” for the purposes of the ADA, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries and Title II of GINA.

If an employer requires an employee to receive the COVID-19 vaccination, administered by the employer or its third party contractor, then the employer must show that the disability-related screening inquiries are “job related and consistent with business necessity.”  Stated differently, 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, would pose a “direct threat” to the health or safety of himself or others.

Such disability-related screenings questions may be asked without needing to satisfy the “job related and consistent with business necessity” standard under two circumstances:

1. Vaccination Offered on a Voluntary Basis. If the employer offers the vaccination to employees on a voluntary basis, then the employee’s decision to answer the pre-screening questions must also be voluntary.  The employer may not retaliate against, intimidate, or threaten the employee for refusing to answer the questions.

2. Vaccine Administered By a Third Party that Does Not Contract with the Employer. If the employee receives an employer-required vaccination from a third party that does not contract with the employer, such as a pharmacy or other healthcare provider (e.g., primary care physician), then the ADA “job related and consistent with business necessity” standard would not apply to pre-vaccination medical screening questions.

Where the pre-vaccination screening questions do not include questions about genetic information such as family medical history, Title II of GINA would not be implicated.  If, however, the screening questions inquire about family history or other genetic information, the updated EEOC guidance suggests that employers consider requesting proof of vaccination instead of administering the vaccine themselves.  Proof of vaccination alone does not involve the use, acquisition, or disclosure of genetic information, and thus does not implicate Title II of GINA.

Requesting proof of receipt of a COVID-19 vaccination is likewise not a disability-related inquiry, because such a request would not elicit information about a disability. Asking why an individual did not receive a vaccination, however, potentially implicates medical conditions and therefore would be subject to the pertinent standard that the inquiry be “job related and consistent with business necessity.”   The updated EEOC guidance also advises that employers consider warning employees against providing medical information as part of submitting their proof of receipt of a COVID-19 vaccination from a pharmacy or their own healthcare provider.

Responding to an Employee Unable to Be Vaccinated Due to a Disability or Sincerely Held Religious Belief

Where an employer requires COVID-19 vaccinations for its employees, and an employee indicates that he or she is unable to receive the vaccine due to a disability, the employer must assess several factors:

• If the employer determines that an individual who cannot be vaccinated due to a disability poses a “direct threat” as set forth in the applicable ADA regulations, the employer must attempt to provide the employee with a reasonable accommodation that would eliminate or reduce the risk posed by the unvaccinated employee.

• If the risk posed by the unvaccinated employee cannot be reduced to an acceptable level by a reasonable accommodation, the employer may exclude the employee from physically entering the workplace. Under those circumstances, the employer may not automatically terminate the worker, because the employee may be entitled to accommodations such as performing the current position remotely.

• Employers should engage in a flexible, interactive process with employees to identify workplace accommodation options that do not constitute an undue hardship to the employer, and may include the employer requesting and obtaining supporting documentation about the employee’s disability. Other factors may also impact the employer’s undue hardship consideration, for example the prevalence of COVID-19 vaccinated employees in the workplace and the amount of potential contact with other individuals for whom the vaccination status is unknown.

• Pre-pandemic ADA requirements are still applicable, and employers must remind managers and supervisors that it is unlawful to disclose that an employee is receiving an accommodation and that employers may not retaliate against an employee for requesting an accommodation.

Additionally, if an employer is on notice that an employee is prevented from receiving the COVID-19 vaccination due to a sincerely held religious belief, practice, or observance, then the employer must provide a reasonable accommodation unless it would pose an undue hardship.  While the employer should ordinarily assume that an employee’s religious accommodation request is based on a sincerely held belief, an employer may request additional supporting information if it has an objective basis for questioning either the religious nature or sincerity of the belief, practice, or observance.

An employer may lawfully exclude an employee from the workplace if the employee cannot get a COVID-19 vaccination because of a disability or a sincerely held religious belief, and there is no reasonable accommodation possible.  This does not permit the employer to automatically terminate the worker, and employers must determine whether any other rights may apply under the laws enforced by the EEOC or other federal, state, and local laws.

What Employers Should Do Now

At the outset, employers should determine whether to offer the COVID-19 vaccination to employees on a voluntary basis or make it mandatory, and whether to administer the vaccination or require that employees obtain the vaccination from a pharmacy or other healthcare provider unaffiliated with the employer.  If, due to cost or other considerations, the employer decides to administer the vaccination to employees rather than requiring proof of vaccination, then the employer should review the pre-screening vaccination questions applicable to the particular vaccination being administered and establish protocols for maintaining the confidentiality of any information obtained in the course of the vaccination program.  The employer should train those involved in administering the vaccination with recognizing and identifying situations that may implicate a disability-related inquiry and how to address employees who are unable to take the vaccination due to a disability or sincerely held religious belief.

It is also critical that an employer understand its obligations under all applicable anti-discrimination and accommodation laws, including federal, state, and local laws, regulations, and agency guidance, and ensure that managers and supervisors are aware of the importance of compliance, regardless of whether they or their employee reports are working onsite or remotely.

The body of law and regulations regarding COVID-19 vaccinations is rapidly developing and undoubtedly will touch on many overlapping workplace local, state, and federal legal obligations.