EEOC Issues COVID-19 Vaccine Guidance for EmployersDecember 17, 2020
12/17/20 | 2020-21
EEOC Issues COVID-19 Vaccine Guidance for EmployersIntroduction
On December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) released much anticipated new guidance on the interaction of various equal employment opportunity (EEO) laws with the newly approved COVID-19 vaccine. Of significant note, this guidance effectively permits employers to implement a mandatory vaccine program under certain conditions. While such a program may be permissible, employers will want to consider a number of factors in determining what type of vaccine program—if any—to implement with their employees. An overview of the EEOC guidance is provided below.
Disability-related Inquiries and Medical Examination Issues
The Americans with Disabilities Act (ADA) limits an employer’s ability to make disability-related inquiries and to require employees undergo a medical examination. The Genetic Information Nondiscrimination Act (GINA) prohibits the use of genetic information to make employment decisions, and also the acquisition or disclosure of an employee’s genetic information, including family medical history. This latest EEOC guidance provides that an employer’s administration of the COVID-19 vaccination, or an employer’s requirement to provide proof of vaccination is not a medical examination or disability-related inquiry under the ADA. The guidance also confirms that these vaccination requirements do not implicate GINA.
The EEOC did indicate, however, that any pre-vaccination medical screening the employer (or a third party contracted by the employer) performs is likely to elicit disability-related information, and may also elicit recommend pre-vaccination medical screening as part of the vaccination process.) In that case, the employer is required to demonstrate that these disability-related screening inquiries are “job-related and consistent with business necessity.” Under the ADA, in order to meet that requirement, an employer must have a reasonable belief, based on objective evidence, that an employee who does not answer the screening questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.
The guidance sets forth two situations where an employer’s vaccination program can include prevaccination screening without having to satisfy the ADA’s “job-related and consistent with business necessity” requirement. First, if an employer offers a vaccination to employees on a voluntary basis and the pre-screening questions are voluntary, the ADA restrictions on disability-related inquiries are not applicable. Second, where an employee receives an employer-required vaccination from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider, the ADA restrictions on disability-related inquiries do not apply. This component of the guidance provides employers with a clear, practical roadmap of how to develop a vaccine program that does not run afoul of the ADA.
Reasonable Accommodation Requirements
While the EEOC guidance generally permits mandatory vaccine programs, employers that choose to implement such a program have an obligation under the ADA and Title VII to make reasonable accommodations for employees with disability-related and religious objections to taking the vaccine. As it relates to disability-related accommodations, an employer is required to undergo an individualized assessment to determine whether 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 reduced by reasonable accommodation.” Even where an employer determines such a threat exists and excludes the employee from the worksite, the employer is required to consider additional accommodations such as working remotely, as well as any applicable leave entitlements.
With respect to religious objections under Title VII, where an employee’s sincerely held religious belief, practice or observance prevents the employee from receiving the vaccination, the employer is required to provide a reasonable accommodation unless it would pose an undue hardship. Courts have defined an undue hardship as more than a de minimis cost or burden on the employer. If the employer determines a reasonable accommodation would pose an undue burden, it may “exclude” the employee from the workplace, but should consider additional federal, state, and local EEO laws that may apply. Given the current climate, and specifically that certain employees may be opposed to taking the vaccine, it is worth noting the EEOC guidance provides that an employer should generally assume an employee’s religious beliefs are sincerely held. That said, the guidance also notes that if an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer can request additional supporting information, although it is unclear what would constitute supporting information.
This EEOC guidance provides welcomed flexibility for employers as they continue to manage employee safety and operations during this pandemic. Employers considering whether to implement a mandatory vaccine program should consider this guidance, consult with employment law counsel, and evaluate a host of other key factors to determine whether such a program makes sense for their operation. Please contact your Alliant representative with additional questions.
Compliance Alert is presented by the Compliance Practice Group of Alliant Employee Benefits
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