The first emergency use COVID-19 vaccines are finally here. With their long-awaited arrival, however, come new questions, including whether employers can require employees to receive vaccinations. The answer to the question is yes, but the interplay of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act (Title VII) and the Genetic Information Nondiscrimination Act (GINA) complicates this issue. Fortunately, on Dec. 16, the Equal Employment Opportunity Commission (EEOC) released its first COVID-19 vaccination-related guidance on this topic.
There are, of course, exceptions to an employer vaccination requirement. Some employees may not be able to receive the vaccine because of a medical condition or impairment that rises to the level of a “disability” under the ADA. In that case, the employer must engage in the interactive process to determine whether a reasonable accommodation can be provided to the employee without posing an undue hardship on the employer. If the employer determines, however, 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 employer may prohibit the employee from physically entering the workplace.
Likewise, employers must be mindful that Title VII protects an employee’s sincerely held religious belief, practice or observance—which may prevent the employee from receiving the vaccine. Once the employer becomes aware of such, the employer must provide a reasonable accommodation unless it would pose an undue hardship. If the employer cannot provide a reasonable accommodation, the employer may prohibit the employee from physically entering the workplace.
Importantly, even assuming the employee can be prohibited from physically entering the workplace, that does not automatically mean that the employer can terminate the employee. Other EEOC guidelines, and federal, state and local laws, must be considered before terminating the employee.
What Can the Employer Request from the Employee?
Under the ADA, employers cannot ask or require a job applicant to take a medical examination, or inquire about disabilities, before making a job offer. Similarly, medical examinations of current employees must be job-related and consistent with business necessity. The EEOC’s new guidance advises, however, that requiring a COVID-19 vaccination does not constitute a “medical examination” under the ADA because the employer is not seeking information about an individual’s impairments or current health status. It is important to keep in mind, though, that vaccination pre-screening questions could still constitute disability-related inquiries. As such, if the vaccination is mandatory and if the employer administers the vaccine (rather than using a third party, such as a pharmacy or doctor’s office, that does not have a contract with the employer), the employer must show that any pre-screening questions are job-related and consistent with business necessity. This means that the employer must have a reasonable belief that an employee who does not answer the questions (and thus, does not receive a vaccine) will pose a direct threat to the health or safety of him or herself or others.
What if the employee receives the employer-mandated vaccination from a third party that does not have a contract with the employer? Can the employer request proof of receipt of the vaccination from the employee? According to the EEOC, yes, but the employer should be careful not to ask follow-up questions that might elicit disability-related information from the employee.
What About GINA?
Finally, employers cannot forget about GINA, which prohibits employers from using genetic information to make employment decisions, and from acquiring or disclosing genetic information (although exceptions do exist). The EEOC’s guidance clarifies that administering a COVID-19 vaccine or requiring employees to provide proof that they have received the vaccine does not implicate GINA. But asking vaccination pre-screening questions that seek genetic information (e.g., family members’ medical histories, information about the employee’s or family members’ genetic tests, etc.) might violate GINA.
The full EEOC vaccinations guidance can be located in Section K of the questions and answers located here.
Employers should be sure to review this guidance before making any decisions about requiring COVID-19 vaccinations.
