The Equal Employment Opportunity Commission (EEOC) has updated its guidance entitled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws” in view of the recent development and pending distribution of a COVID-19 vaccine. The publication provides employers with technical assistance on employment issues related to COVID-19, including the COVID-19 vaccine, in a question and answer format.
On December 16, 2020, the EEOC supplemented the publication to include seven new questions and answers related to the COVID-19 vaccine. The guidance clarifies that the vaccine is not a medical examination under the Americans with Disabilities Act (ADA). As such, employers administering the vaccine to employees do not need to demonstrate that the vaccine is job related and consistent with business necessity.
However, any medical screening questions asked by employers in advance of administering the vaccine will likely implicate the ADA's provisions on disability-related inquiries. Therefore, employers must be able to show that pre-screening questions are job-related and due to business necessity. To meet this standard, employers must have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and thus does not receive the vaccine will pose a direct threat to the health and safety of her/himself or others.
The EEOC has clarified that if the vaccine (and the related pre-screening questions) are offered to employees on a voluntary basis, then employers do not need to show that the questions satisfy the “job-related and consistent with business necessity requirement.” Similarly, if employees receive an employer-required vaccination from a third party that has not contracted with the employer, the “job-related and consistent with business necessity requirement” would not apply to the pre-screening questions.
Asking employees whether they have been vaccinated or requiring employees to show proof of vaccination is not a disability-related inquiry under the ADA. However, employers should warn employees not to provide any medical information as part of the proof of vaccination, in order to avoid implicating the ADA. Of course, employers are required to keep confidential any employee medical information obtained in the course of a workplace vaccination program.
The updated guidance provides specific steps for employers to take when mandating vaccinations and when an employee indicates that he or she is unable to receive a COVID-19 vaccine due to a disability or because of a sincerely held religious practice or belief. To exclude an employee from the workplace who cannot receive a vaccine due to a disability, an employer must show that the unvaccinated employee would pose a direct threat, i.e. a significant risk of substantial harm to the health and safety of the individual or others that cannot be reduced or eliminated by reasonable accommodation. Determining whether a direct threat is present requires an individualized assessment. To conclude that a direct threat is present, an employer must determine that an unvaccinated individual would expose others to the virus at the worksite. Additionally, an employer cannot exclude the employee from the worksite—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. As always, employers should engage in a flexible, interactive process to identify workplace accommodations that do not constitute an undue hardship. Working remotely may be one such reasonable accommodation.
Similarly, once an employer is on notice that an employee's sincerely held religious belief or practice prevents receiving a vaccination, the employer must provide a reasonable accommodation unless doing so would cause an undue hardship. Employers should presume that requests for religious accommodation are sincere; however, if an employer has an objective basis for questioning either the religious nature or the sincerity of the belief held, the employer may request that the employee provide additional supporting information.
Employers should train managers and supervisors to recognize an accommodation request from an employee and remind them that it is unlawful to disclose whether an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation.
In the event that an employee is unable to be vaccinated because of a disability or sincerely held religious belief, and reasonable accommodation is not possible, then the employer lawfully may exclude that employee from the workplace. However, before terminating employment, the employer should determine if any other rights apply under the EEO laws or other federal, state, and local authorities.
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