The Equal Employment Opportunity Commission (EEOC) has updated its guidance on how employers can navigate federal antidiscrimination laws while requiring employees to be vaccinated against COVID-19.
On December 16, the EEOC added a section on how the COVID-19 vaccination interacts with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA) to its publication titled “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”
ADA
The new guidance spells out that the administration of a federally approved or authorized COVID-19 vaccine by an employer does not constitute a “medical examination” for ADA purposes.
“If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination,” the guidance states.
However, asking the prescreening questions necessary before vaccination may implicate the ADA’s provision on disability-related inquiries since those inquiries are likely to elicit information about a disability. So, if an employer administers the vaccine, it must show the prescreening questions are “job-related and consistent with business necessity” to comply with the ADA.
Title VII
The guidance also covers Title VII questions related to employers requiring employees to be vaccinated. Employees may be excused from mandatory vaccination if they have medical or religious reasons for not taking the vaccine.
If an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the individual from getting the vaccination, Title VII requires the employer to provide a reasonable accommodation unless it would pose an undue hardship, which the Act defines as having more than a minimal burden on the employer.
If religious reasons prevent an employee from getting vaccinated and no reasonable accommodation is possible, “then it would be lawful for the employer to exclude the employee from the workplace,” the guidance says, adding this “does not mean the employer may automatically terminate the worker.” In such a case, employers will need to determine if any other federal, state, or local rights apply.
GINA
The new guidance also clarifies that administering a COVID-19 vaccination to employees or requiring them to prove they have received the vaccination doesn’t implicate GINA because it doesn’t involve the use of genetic information to make employment decisions or disclose “genetic information” as defined by the statute.
However, the prescreening questions may elicit information about genetic information. The guidance notes that it isn’t yet clear what prescreening questions will be asked.
“If the pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA,” the guidance states. “However, if the pre-vaccination questions do include questions about genetic information, then employers who want to ensure that employees have been vaccinated may want to request proof of vaccination instead of administering the vaccine themselves.”
Tammy Binford writes and edits news alerts and newsletter articles on labor and employment law topics for BLR web and print publications.