By Rob Gilmore & Kirsten Mooney
In November, prior to the release of the COVID-19 vaccination, we asked the question: What Does a COVID-19 Vaccine Mean For Employers? In the article, we discussed the intersection of various laws on the issue of mandated vaccinations and overall considerations for employers when deciding whether to require their employees receive the COVID-19 vaccine. We also stated that long-awaited guidance from administrative agencies, including the Equal Employment Opportunity Commission (EEOC), would likely be published soon. We hoped that this guidance would give employers more direction on how to make the difficult – and novel – business decisions regarding the COVID-19 vaccination in the workplace.
Well employers, the wait is finally over. On Dec. 16, 2020, the EEOC released its much-anticipated guidance on the COVID-19 vaccination, laying the groundwork for employers to mandate the vaccine if they choose to do so. Importantly, the EEOC answered the question of whether vaccines are “medical examinations” under the Americans with Disabilities Act (ADA): They are not. The guidance also discusses the COVID-19 vaccine’s implication of several different laws, including the ADA, the Genetic Information Nondiscrimination Act (GINA), and Title VII of the Civil Rights Act of 1964 (but, more specifically, the religious accommodations under Title VII).
Summary of the EEOC’s COVID-19 Vaccine Guidance
- The EEOC opined that the administration of a COVID-19 vaccine by an employer, or by a third-party administrator on behalf of an employer, is NOT a “medical examination” under the ADA. The EEOC said that, “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.” This appears to give employers the go ahead to implement policies requiring employees to receive the COVID-19 vaccine as a condition of continued employment. Or, at the very least, as a condition to return to the physical workspace.
- While the administration of the COVID-19 vaccine by an employer is not considered a “medical examination,” the EEOC noted that pre-screening vaccination questions may be considered a “disability-related inquiry” under the ADA. Employers should make sure that any such screening questions are “job-related and consistent with business necessity.” However, the EEOC also says that health care providers who administer the COVID-19 vaccine should ask such “disability-related inquiries” to determine whether the vaccine is safe to administer, implying that employers should only mandate and administer the COVID-19 vaccination to employees if it is “job related and consistent with business necessity.”
- There are two scenarios where pre-screening vaccination questions are not considered “disability related inquiries”: (i) if an employee receives the vaccine voluntarily and (ii) if an employee receives the vaccine from a third-party administrator with no contractual relationship with the employer.
- Asking or requiring an employee to show proof of receipt of the COVID-19 vaccine is not a “disability-related inquiry.” However, the EEOC notes that subsequent follow-up questions, such as asking why an individual did not receive the vaccination, may be subject to the “job-related and consistent with business necessity” standard discussed above.
- The new guidance clears the way for employers to encourage employees to receive the COVID-19 vaccination on a voluntary basis.
- If employers choose to mandate the vaccine, they must also reasonably accommodate those employees who cannot (or will not) be vaccinated for medical or sincerely held religious reasons. The EEOC advises that employers should conduct a four-factor “individualized assessment” in determining whether a direct threat exists (i.e., the unvaccinated employee is likely to expose others at the worksite). The four factors are: the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur and the imminence of potential harm. If an unvaccinated employee will pose a direct threat, the employer still cannot exclude the employee from the workplace unless there is no way to provide a reasonable accommodation to eliminate or reduce the risk of exposure.
- When determining a reasonable accommodation for an unvaccinated employee, the employer should engage in a “flexible, interactive process” to identify any workplace accommodation options that do not constitute an undue hardship for the employer. In general, an undue hardship means a significant difficulty or expense for the employer. Please note that the prevalence of workplace employees who have received the vaccine and the unvaccinated employee’s contact with other vaccinated or unvaccinated employees/third parties may affect the analysis.
- In theory, if an employee is unable to receive the COVID-19 vaccination because of medical or sincerely held religious reasons, and the employer is unable to provide a reasonable accommodation, then it would be lawful for the employer to exclude the employee from the workplace. However, this does not mean that the employer must also terminate the employee outright. The EEOC advises that a lack of a reasonable accommodation “does not mean that the employer may automatically terminate the worker” without first determining “if any other rights apply under the EEO laws or other federal, state or local authorities.”
- The EEOC guidance confirms that neither administering a COVID-19 vaccine to employees nor requiring proof of vaccination from employees is prohibited by GINA.
Employers should familiarize themselves with the EEOC’s guidance before making any decisions regarding workplace vaccine policies for employees. They should also consider and assess the related legal and HR issues, such as employee morale and potential tort or worker’s compensation liability, prior to implementing a COVID-19 vaccination program in their workplace.
The EEOC continues to update its guidance as real-world applications and issues arise regarding the administration of the vaccine nationally. Nearly all states have begun the administration of the vaccine, albeit through certain priority schedules, and additional questions and inquiries are sure to surface as the vaccine becomes more available. Courts may also have the final say on employment policies and laws regarding mandatory vaccines, which would likely offer further (and perhaps different) guidance to employers.
KJK is closely monitoring the various federal, state and local updates in policy related to the COVID-19 vaccine. Should you have any questions or wish to discuss the implementation of a vaccine policy at your business, please contact Rob Gilmore (rsg@kjk.com / 216.736.7240), Kirsten Mooney (kbm@kjk.com / 216.736.7239) or any of our Labor & Employment professionals.