Employment Law Update: The Vaccine Is Here—Now What?
On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) published guidance concerning the administration of vaccines and pre-screening questions with respect to compliance with the Americans with Disabilities Act (ADA), Title VII, and the Genetic Information Nondiscrimination Act (GINA). See Section K at the EEOC website: https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws.
In summary, the EEOC has said that all employers may require mandatory vaccines for their employees provided that employers: (i) allow employees to receive the vaccine from a third party that does not have a contract with the employer, and (ii) follow the accommodation requirements under the ADA and Title VII.
The administration of a COVID-19 vaccine to an employee by an employer is not considered a “medical examination” for purposes of the ADA since the employer is not seeking information about the employee’s disability or health status.
Because pre-screening vaccination questions may elicit information about a disability or health condition, an employer must demonstrate that pre-screening questions are “job-related and consistent with business necessity,” as required under the ADA. The EEOC identified two scenarios in which an employer can ask such pre-screening questions without having to demonstrate such questions are job-related and consistent with business necessity:
- an employer has offered a vaccination to an employee on a voluntary basis and, therefore, the employee’s decision to answer pre-screening, disability-related questions is also voluntary (as required by the ADA) and without consequence; or
- a third party (i.e., a pharmacy or health care provider) administering the vaccine does not have a contract with the employer.
When administering the vaccine themselves, employers should ensure that they do not seek information regarding an employee’s genetic information, which may violate the Genetic Information Nondiscrimination Act.
In and of itself, requiring an employee to provide proof of a COVID-19 vaccination is not a disability-related inquiry. However, follow-up questions by employers asking why an individual did not receive a vaccination may elicit protected medical information and would be subject to the standard of “job-related and consistent with business necessity.”
If an employee indicates that the employee cannot fulfill a mandatory vaccination requirement because of a disability-related issue or sincerely held religious belief, observance, or practice, an employer must conduct an individualized assessment of the following four factors in determining whether an unvaccinated employee poses a direct threat and a significant risk of substantial harm to the health and safety of the workplace:
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.
If a determination is made that an unvaccinated employee will expose others to the virus at the worksite, then the unvaccinated employee would be considered a direct threat.
If an employer institutes a mandatory vaccination requirement and an employee cannot obtain a vaccination for COVID-19 because of a disability or sincerely held religious belief, and there is no reasonable accommodation possible (i.e., remote work), it would be lawful for the employer to exclude the employee from the workplace. However, an employer may not automatically terminate an employee who is unable to be vaccinated due to a disability or a religious belief and poses a direct threat to the workplace without determining whether any other rights apply under the EEOC laws or other federal, state, and local authorities.
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.