December 18, 2020

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) updated and expanded its technical assistance publication on addressing pandemic-related questions under the federal EEO laws. This publication, entitled What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, includes a Q&A section specific to issues surrounding vaccinations at Section K.

There are several important sections which illustrate how the Americans with Disabilities Act (ADA) may apply in vaccination-related circumstances, including:

• A COVID-19 vaccine that is administered to an employee by an employer (or employer-contracted third party) is not a "medical examination" under the ADA as a medical examination is "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." However, questions posed by employers pre-screening must be "job-related and consistent with business necessity." The EEOC has made clear that the pre-screening questions must meet these requirements as those types of questions may implicate the ADA's provision on disability-related inquiries, which are those likely to elicit information about a disability.

• Employers must meet the "direct threat" standard with regard to mandatory vaccinations. According to the Centers for Disease Control and Prevention (CDC), there could be medical reasons that would prevent an employee from receiving a vaccination; therefore, it is recommending that health care providers ask questions prior to administering a vaccine. If an employer mandates that its employees be vaccinated and asks these same screening questions, information related to a disability of the employee could be elicited. Therefore, any such questions must be "job-related and consistent with business necessity." This means that an employer would be required to have a reasonable belief that the employee who does not answer the questions and does not receive a vaccination will pose a direct threat to the health or safety of him or herself or others.

• Asking or requiring that an employee show proof of vaccination is not a disability-related inquiry. However, asking follow-up questions regarding why an individual did not receive a vaccination is likely to elicit information regarding a disability or disabilities and therefore must meet the ADA standard that they be "job-related and consistent with business necessity."

• Employers need to be careful when responding to employees who indicate that they are unable to receive a vaccination due to a disability. Under the ADA, an employer is permitted 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." However, if that safety-based qualification standard, including a vaccination requirement, screens out an employee with a disability, the employer must show, pursuant to applicable Code of Federal Regulation sections, 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." At that point, employers should conduct an individualized assessment of four (4) 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.

If an employer determines that an employee who cannot be vaccinated poses a direct threat in the workplace, the employee cannot be excluded from the workplace unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. Determining that there is a direct threat does not mean that the employer can automatically terminate the employee. Options such as remote work and other possible accommodations must be considered. Employers need to train managers to recognize accommodation requests. Consulting the Job Accommodation Network (JAN) website as a resource for different types of accommodations is advisable. Accommodation and accommodation request must be kept confidential.

The publication contains guidance on accommodating "sincerely held religious practice or beliefs."

• Employees are permitted to refuse the vaccination due to the employee's sincerely held religious belief, practice, or observance. Employers must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII, according to the EEOC. The definition of "undue hardship" under Title VII has been determined by courts as "having more than a de minimis cost or burden" on the employer. Just like disabilities, if accommodation in the workplace is found to be impossible, an employer cannot automatically terminate the employee and must consider other types of accommodation such as remote work.

The publication addresses issues related to the Genetic Information Nondiscrimination Act (GINA).

• The guidance issued by the EEOC states that Title II of GINA is not implicated when employers ask employees to provide proof that they have received the vaccine because "...it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of 'genetic information' as defined by the statute." However, pre-screening questions may reveal this information, so EEOC recommends including a warning that employees not provide genetic information in answering those questions. EEOC's guidance references model language that can be used for this warning.

The updated COVID-19 technical assistance publication is extensive and contains many other topics in addition to the section applicable to vaccinations. This e-alert focuses on Section K of the technical assistance publication only. If you need to focus your organization's efforts on any of these issues, Bowles Rice can help.

For more Information:
The Bowles Rice Labor and Employment Law Team is closely monitoring these and related updates and will continue to share important details as they evolve. If you have questions or would like additional information on the updated COVID-19 technical assistance publication, please contact a member of our team.