Yesterday the Equal Employment Opportunity Commission (EEOC) published additional questions and answers to their COVID-19 guidance titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
The updated guidance is available here.
Americans with Disabilities Act (ADA) and Title VII
- The EEOC confirmed that the vaccination itself is not a “medical examination” under the ADA and therefore employers who administer COVID-19 vaccines to their employees need not meet the “job-related and consistent with business necessity” standard of the ADA.
- However, because the Centers for Disease Control and Prevention (CDC) recommends pre-screening questions to ensure there are no medical reasons that would prevent an individual from receiving the vaccine, the updated guidance puts employers who are administering vaccines (or contracting with a third party to administer vaccines) on notice that these questions are likely subject to the ADA.
- For these disability-related inquiries, employers administering the vaccine must establish that the questions are “job-related and consistent with business necessity” unless the vaccination is either voluntary or administered by a third party that does not have a contract with the employer.
- If employees receive the vaccine from an independent third-party, employers are permitted to require proof of vaccination.
- Without actually ever saying that a mandatory vaccination policy is acceptable, the updated guidance specifically states that employers are permitted to implement a “qualification standard” that an individual “shall not pose a direct threat to the health or safety of individuals in the workplace.” But goes on to state that if such a “safety-based qualification standard, such as a vaccination requirement” screens out or tends to screen out individuals with disability, the employer must show that an unvaccinated employee would pose a “direct threat” as defined by the ADA. But the EEOC notes: “If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat.”
- The updated guidance further notes that a vaccination requirement may implicate an employee’s rights under Title VII. If employees indicate that they cannot take the vaccine due to a sincerely held religious belief, the employer must provide a reasonable accommodation unless it would pose an undue hardship on the employer.
- If there is no reasonable accommodation available for an employee who cannot get vaccinated for COVID-19 due to a disability or sincerely held religious belief, the guidance provides that it would be lawful for the employer to exclude the individual from the workplace. IMPORTANTLY, this does not mean that an employer may automatically terminate the employee.
Genetic Information Nondiscrimination Act (GINA)
- Similar to the ADA, the updated guidance notes that the administration of a vaccine, on its own, will not implicate GINA, but like for the ADA, the screening questions may.
Before implementing a mandatory vaccination policy, contact your Warner attorney or a member of Warner’s Labor and Employment Practice Group to ensure compliance with this guidance.