The EEOC’s guidance may encourage employers to avoid implementing their own employer-provided vaccination programs and instead rely on pharmacies and healthcare providers to handle vaccinations. 

In our prior Alert, we advised that the Equal Employment Opportunity Commission (EEOC) would provide updates to its COVID-19 guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to address employer rights and responsibilities related to COVID-19 vaccination policies. Right after our Alert was issued, on December 16, 2020, the EEOC updated its COVID-19 guidance with questions and answers for employers who seek to have their employees inoculated against this deadly virus. 

Administering a Vaccine

Initially, the EEOC stated the administration of a COVID-19 vaccine to an employee by an employer or a third party with whom the employer contracts is not a “medical examination” under the Americans with Disabilities Act (ADA). The EEOC reasons that in administering a vaccine, the employer is not seeking information about an individual’s impairments or current health status.

However, the EEOC notes that according to the CDC, healthcare providers should ask certain questions before administering a vaccine to ensure there is no medical reason that would prevent the person from receiving the vaccination. Pre-vaccination medical screening questions are likely to elicit information about a disability, and thus if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA. To ask such pre-screening questions, the employer would have to show the inquiries are “job-related and consistent with business necessity.” To meet this standard, the EEOC asserts an employer would need a reasonable belief, based on objective evidence, that an employee who does not answer the questions (and thus does not receive a vaccination) will pose a direct threat to the health or safety of herself/himself or others.

The EEOC provides that there are two instances when pre-screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. First, when an employer’s COVID-19 vaccination program is voluntary. Second, when an employee receives an employer-required vaccination from a third party not contracted with the employer, such as a pharmacy or the employee’s own healthcare provider. The EEOC’s guidance may encourage employers to avoid implementing their own employer-provided vaccination programs and instead rely on pharmacies and healthcare providers to handle vaccinations. Pharmacies are already administering COVID-19 vaccines to employees and residents of some long-term care facilities and are expected to serve a critical role during the vaccination rollout.

The EEOC also stated that asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. The EEOC cautions employers to warn employees not to provide any medical information as part of the proof of vaccination in order to avoid implicating the ADA.

Handling Accommodation Requests

The EEOC’s COVID-19 guidance also advises employers on how to respond to requests for disability and religious accommodations where an employer has a mandatory COVID-19 vaccination policy. The EEOC reiterates that the ADA allows an employer to have a “qualification standard” that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If an employee indicates he or she is unable to receive a COVID-19 vaccination because of disability and the employer wishes to exclude the employee from physically entering the workplace, the employer must show 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.”

Employers are advised to conduct an individualized assessment of four factors in determining whether a direct threat exists:

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.

While the EEOC does not provide detailed recommendations on how to conduct this test during the pandemic, it suggests factors to consider such as prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others. 

If an employer determines an employee who cannot be vaccinated poses a direct threat at the worksite, the employer cannot exclude the employee unless there is no way to provide a reasonable accommodation that would eliminate or reduce the risk so the unvaccinated employee does not pose a direct threat. The wearing of face coverings (which may be required regardless) or limiting interaction with others may be ways to reduce the risk without requiring vaccination. If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. An employer is still required to consider other accommodations such as remote work or a leave of absence.

The EEOC advises that managers and supervisors responsible for administering a COVID-19 vaccination policy should know how to recognize an accommodation request from an employee with a disability and know to whom the request should be directed. Based on this comment, educating and training managers and supervisors about an employer’s accommodation obligations is clearly something the EEOC expects employers to do.

The EEOC does not provide as much guidance on how to respond to a request for a religious accommodation, other than noting the definition of religion is broad and that the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. As stated in our prior Alert, once an employer receives notice that an employee’s sincerely held religious beliefs, practice or observance prevents the employee from receiving a vaccine, the employer must provide a reasonable accommodation unless it would impose an undue hardship. Under Title VII of the 1964 Civil Rights Act (but not necessarily true under some state laws such as in New York), the undue hardship standard for religious accommodations is not as high as under the ADA. While there will likely be increased claims for religious accommodations by employees reluctant to receive a vaccination, the fact the EEOC did not include as much guidance for religious accommodations as disability accommodations in its COVID-19 guidance is likely indicative of the lower standard applicable to employers for satisfying undue hardship under Title VII.

The EEOC’s COVID-19 guidance also addresses the impact of Title II of the Genetic Information Nondiscrimination Act (GINA) on COVID-19 vaccinations. Title II of GINA prohibits employers from requesting genetic information absent limited circumstances. The EEOC advised that GINA is not implicated when an employer simply administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a vaccination. However, asking pre-vaccination medical screening questions may elicit information about genetic information and thus implicate GINA. Whether or not screening questions implicate GINA will depend on what questions are asked, which may vary based on the manufacturer of the vaccine, and this, in turn, may dictate whether an employer will choose to administer the vaccine program directly, or through a third party, or simply request proof of vaccination.

Finally, the EEOC advised that any medical information obtained about an employee in connection with the vaccination process should be kept confidential.

What This Means for Employers

While the EEOC finally weighed in on the COVID-19 workplace vaccination issue, many questions remain such as what is an “acceptable level” of risk related to COVID-19 and whether employers should compensate employees for the cost of a vaccination and the time they spend getting vaccinated. With a new presidential administration in less than one month and various vaccines entering the market, it is possible that the EEOC guidance will be further updated in the near term. Employers considering implementation of a mandatory COVID-19 vaccination policy should consider working with counsel in drafting the policy and training management in how to implement the policy to help ensure that the numerous legal requirements are satisfied. We will continue to monitor federal, state and local guidance regarding COVID-19 vaccinations in the workplace and provide additional updates and analysis.

About Duane Morris

Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.

For More Information

If you have any questions about this Alert, please contact Eve I. Klein, Linda B. Hollinshead, Jonathan A. Segal, Eric W. Ruden, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.