Employer Vaccination Programs and New EEOC COVID-19 Guidance

December 22, 2020

On Dec. 16, 2020, the U.S. Equal Employment Opportunity Commission updated its COVID-19 guidance, offering additional instruction as to whether and when an employer can require its employees to obtain a COVID-19 vaccine. This guidance comes days after the Food and Drug Administration approved the distribution of the first COVID-19 vaccine in the United States under an emergency use authorization. The new guidance is contained in additional questions and answers in the EEOC’s “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

According to the new EEOC guidance, employers may put in place mandatory programs that require employees to receive a COVID-19 vaccination, subject to certain exceptions and other conditions to address accommodations for medical disabilities and religious beliefs.

Employers May Mandate Vaccination

The EEOC’s guidance makes clear that a COVID-19 vaccination itself is not an ADA-prohibited medical examination and thus an employer may mandate vaccinations without violating the act. The ADA defines a medical examination as “a procedure or test usually given by a health care professional or in a medical setting that seeks information about an individual’s physical or mental impairments or health.” Unlike vision tests, breath analyses, or blood or urine tests, a vaccination does not seek information about an individual’s current health status. Therefore, an employer does not need to support its decision to require a COVID-19 vaccination with a determination that it is “job-related and consistent with business necessity.”

Employers Must Consider Accommodations for Disability and Religious Beliefs

If an individual cannot be vaccinated due to a disability or requests an accommodation for religious reasons, the employer must determine whether allowing an exception to the vaccination policy would cause a direct threat to the workplace. When considering the risk of the unvaccinated employee, the EEOC suggests four factors should be weighed: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. Ultimately, the EEOC’s guidance states that a conclusion that an unvaccinated individual is a direct threat must include a determination that that person will expose others to the virus at the worksite.

If an unvaccinated employee is a direct threat, the employer must then determine, through an interactive process with the employee, whether a reasonable accommodation is available that would eliminate or reduce this risk. For example, the employee may be entitled to accommodations such as performing the current position remotely. This is a fact-specific analysis that considers the nature of the workforce and the particular employee’s job duties.

If an accommodation is requested for religious reasons, the analysis is controlled by Title VII and accommodations will not be considered reasonable if they have more than a de minimis cost to the employer’s business. If an accommodation is requested due to a disability, the analysis is controlled by the ADA and accommodations will not be considered reasonable if they cause significant difficulty or expense.

Administering the Vaccine

As noted above, requiring employees to take the COVID-19 vaccine is not prohibited under the ADA, but the ADA does prohibit employers from making disability-related inquiries that are not “job-related and consistent with business necessity.” Because pre-screening vaccination questions are likely to elicit information about an employee’s disability, employers should make sure that they meet this standard if they intend to administer the vaccine directly or by contracting with a third party to have the vaccine administered.

The EEOC outlined two exceptions to the pre-screening rule. First, it would not apply if the employer required the vaccine, but the employee received it from a non-employer related third party, like the employee’s own health care provider or a pharmacy. It would also not apply if the employer offered the vaccine on a voluntary basis, because then answering the pre-screening questions would also be voluntary. In this second situation, the employer would be prohibited from retaliating against, intimidating or threatening the employee for refusing to answer any pre-screening questions.

Finally, the EEOC’s guidance clearly states that requiring an employee to provide proof of a COVID-19 vaccination is not a disability-related inquiry under the ADA. However, employers should avoid asking follow-up questions and should warn employees not to provide other medical information when providing the proof to avoid eliciting disability-related information. Asking an employee why he or she did not provide proof of a vaccination could trigger the ADA, and must only be done if the inquiry is “job-related and consistent with business necessity” (i.e., the unvaccinated employee would pose a direct threat to the health of others by exposing them to the virus).

If an employer does administer the vaccines or contracts with a third party to do so, it must ensure that it keeps any information obtained through the pre-screening process (or otherwise) confidential.

Title II of the Genetic Information Nondiscrimination Act (GINA)

The EEOC’s guidance also states that requiring a COVID-19 vaccination does not implicate GINA’s prohibitions on using, acquiring or disclosing genetic information. However, an employer may violate GINA to the extent that it (or a contractor acting on its behalf) administers the vaccine and asks pre-screening questions that seek genetic information about the employee or his or her family members.

Because it is unclear what questions screening checklists will contain, employers may want to request proof of vaccination rather than administering the vaccine themselves, and instruct employees not to provide any genetic information as part of the proof.

Emergency Use Authorization Obligations for Vaccine Providers

While not included in the EEOC’s guidance, an employer that decides to administer the vaccine itself should be aware of its obligations as the vaccine provider under section 360bbb-3(e)(1)(A) of the Food, Drug, and Cosmetic Act. That section provides the conditions under which the secretary of health and human services may authorize medical products for emergency use, including that recipients are informed of the benefits and risks of the vaccine (including unknown risks); the option to accept or refuse the vaccine; the health consequences, if any, of refusing the vaccine; and the alternatives to the product that are available and of their benefits and risks (21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(II)-(III)).

To address this, the FDA’s guidance recommends that recipients receive a fact sheet on the vaccine. A sample COVID-19 vaccine fact sheet can be found here.

Further Assistance

For assistance addressing the unique issues raised by COVID-19 or employment issues generally, please reach out to your McGuireWoods contact, the authors or any other members of the McGuireWoods labor and employment group.