EEOC Steerage On COVID-19 Vaccinations

By Last updated Dec 23, 2020

Wednesday December 23, 2020

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance to employers regarding mandatory COVID-19 vaccinations and possible effects under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act ( Title VII). and the Genetic Information Nondiscrimination Act (GINA).

COVID-19 vaccinations required

Subject to certain restrictions and potential placement requests, the EEOC believes that employers may need to require workers to be vaccinated prior to their return to work. The EEOC has made it clear that the administration of a COVID-19 vaccine does not collect any information about a person’s impairments or current state of health and is therefore not a “medical examination” under the ADA.

However, employers considering giving the vaccine either directly or through a third party should proceed with caution. Pre-vaccination screening questions can constitute a medical examination under the ADA or provide information about genetic information concerning the GINA. Consequently, with certain potential exceptions, questions from an employer would need to be “job-related and consistent with business need” prior to screening. However, simply requesting proof of receipt of a COVID-19 vaccination is not considered a disability-related examination.

Accommodation requests

If an employer needs vaccinations, they should be ready to respond to potential placement requests that are based on disability or religious practices or beliefs.

As part of the ADA, employers can implement qualification standards related to workplace safety. However, if compulsory vaccination is screening or tending to screen people with disabilities, the EEOC advises employers must demonstrate that an unvaccinated worker would pose a direct threat as there is a “significant risk of significant harm” to safety or worker health does not exist to be resolved through reasonable accommodation. Determining whether reasonable accommodation is possible would require individual assessments before an unvaccinated employee with a disability is excluded from the job. If the health or safety threat to an unvaccinated employee cannot be reduced to an acceptable level, the employer may consider other options for that employee, such as: B. remote work or vacation, e.g. B. under the Families First Coronavirus Response Act (FFCRA) or the Family and Medical Leave Act (FMLA).

Employees may also refuse to receive a COVID-19 vaccination because of a righteous religious practice or belief. In this situation, the EEOC describes how employers would have to provide housing, unless this would constitute “undue hardship” under Title VII, which means more than a de minimis cost or burden. The EEOC also stresses that employers should generally assume that requests for religious accommodation are based on sincere beliefs unless there is an objective basis for questioning that representation. In this case, the employer could request additional supporting information. According to the EEOC, as in the situation with disability accommodation, the employer can exclude the employee from the workplace if reasonable accommodation is not possible in this context.

Next Steps

Employers who require COVID-19 vaccinations should clearly communicate expectations to workers. You should also keep all employee medical information received as part of a vaccination program confidential.

Employers should also consider requesting proof of vaccination from a pharmacy or health care provider rather than getting vaccinations from the employer or the employer’s contractor, and should make it clear that medical information should not be given to the employer in order to avoid compromising ADA .

In addition, managers and supervisors should be trained to respond to disability or religious shelter requests, including an interactive process and individual assessment, before determining that an unvaccinated person cannot return to work. In this situation, the employer should consider potential vacation days and other options that may be available.