In a recent Legal Comment article, we discussed considerations for employers contemplating implementation of mandatory Coronavirus (“COVID-19”) vaccine policies based on Title VII of the Civil Rights Act of 1964 (“Title VII”) and the American with Disabilities Act (“ADA”). On December 16, 2020, the U.S. Equal Employment Opportunity (“EEOC”) issued instructive guidance related to COVID-19 vaccinations and potential issues related to various equal employment opportunity laws, including the ADA, the Genetic Information Nondiscrimination Act (“GINA”), Title VII, and the Pregnancy Discrimination Act. This guidance is particularly important for employers that are considering COVID-19 vaccination programs and for employers who plan to require their employees to get the COVID-19 vaccination.
ADA and Vaccinations
The EEOC clarified that administration of any COVID-19 vaccine that has been approved or authorized by the Food and Drug Administration (“FDA”) is not a medical examination for purposes of the ADA. This is true whether the employer administers the vaccine or whether the employer contracts with a third party to administer the vaccine. The EEOC cautioned that although the administration of the vaccine is not a medical examination, certain pre-screening vaccination questions may implicate the ADA’s provision on disability related questions. As a result, the EEOC has advised that the employer be careful to ensure that any pre-screening vaccination questions (asked by the employer or by a contractor on the employer’s behalf) are “job-related and consistent with the business necessity.” To meet this standard, employers would need to have a reasonable belief that an employee who refuses to answer the questions poses a direct threat to the health or safety of himself or others. To determine if a direct threat exists, employers should consider four factors: (1) the duration of the risk caused by an unvaccinated employee; (2) the nature and severity of the potential harm of an unvaccinated employee; (3) the likelihood that an unvaccinated employee would cause harm; and (4) the imminence of the potential harm of an unvaccinated employee. A conclusion that there is a direct threat would include a determination that an unvaccinated individual would expose others to the virus at the workplace.
There are two circumstances where disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with the business necessity” requirement. First, if the vaccination is voluntary, then the ADA requires that the decision to answer pre-screening, disability-related questions is also voluntary. Second, if the employee receives a mandatory vaccination from a third party that does not have a contract with the employer (such as a pharmacy or other health care provider), the ADA restriction on disability-related inquiries would not apply.
Finally, the EEOC clarified that asking an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. But any subsequent questions, such as asking why an employee chose against receiving the vaccination, may elicit information about a disability that would be subject to ADA protections.
ADA and Title VII Issues Regarding Mandatory Vaccinations
The EEOC’s guidance verifies that requiring vaccinations of employees is not unlawful, if certain conditions are met. The guidance outlined specific conditions related to disability issues and sincerely held religious beliefs.
Disability Implications
The EEOC advised that any vaccination requirement that screens out or tends to screen out an individual with a disability must meet the direct threat standard outlined above. If an employer concludes that an individual who cannot be vaccinated is a direct threat, the employer cannot exclude the employee from the workplace—or take any other action—unless the employer cannot provide a reasonable accommodation that would eliminate or reduce the risk (absent undue hardship). If the employer cannot reduce the threat to an acceptable level, the employer can exclude the employee from physically entering the workplace, but cannot automatically terminate the employee as other protections may apply.
Religious Beliefs
If an employer is notified that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, then the employer must provide a reasonable accommodation (absent undue hardship under Title VII). Undue hardship under Title VII is more than “a de minimis cost or burden on the employer.” As we highlighted in our prior article, at least one court has held that a religious objection to a mandatory flu vaccine based on veganism was “plausible” because one could subscribe to veganism with sincerity equating to that of traditional religious views. The EEOC explained that if an employer has an objective basis for questioning the religious nature or sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. If the employee cannot get vaccinated because of a sincerely held religious belief, practice, or observance, and the employer cannot provide a reasonable accommodation or reduce the threat to an acceptable level, the employer can exclude the employee from physically entering the workplace, but cannot automatically terminate the employee as other protections may apply.
Title II of GINA and Vaccinations
The EEOC also clarified that GINA is not implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received the COVID-19 vaccination. The EEOC cautioned that although the administration of the vaccine will not implicate GINA, certain pre-screening vaccination questions may elicit information about genetic information, such as questions regarding the immune systems of family members. The EEOC explained that if the pre-vaccination questions do not include questions about genetic information (including family medical history), then asking them does not implicate GINA. The EEOC cautioned, however, that if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated request proof of vaccination instead of administering the vaccination themselves.
Takeaway
Employers should pay close attention to this EEOC guidance if they plan to implement a COVID-19 vaccination policy. Employers should develop and establish an accommodation process to deal with considering and deciding upon whether or not reasonable accommodations to deal with a specific situation are available. If an employer chooses to mandate that their employees get vaccinated, a carefully written COVID-19 vaccination policy should describe the process for requesting such accommodations, so employees know how to make such a request. The reasonable accommodation process should be an interactive process with the employee. As always, employers should document the process regarding accommodations that have been requested, considered, discussed, and either granted or denied. Employers should consult with experienced employment counsel if they have any questions concerning the implementation of a mandatory COVID-19 vaccine policy and/or the accommodation process.&nbs
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R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at rew@kingballow.com. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.
