As the COVID-19 pandemic continues and new treatments arise, the legal implications for employers also continue to evolve. Since the start of the COVID-19 pandemic, many have speculated about the legal implications of workplace vaccine policies. Now that a vaccine exists and is becoming increasingly available, the Equal Employment Opportunity Commission (EEOC) has updated its guidance regarding the applicability of the Americans with Disabilities Act (ADA), Title VII, and Title II of the Genetic Information Nondiscrimination Act (GINA).
The ADA limits an employer’s ability to make disability-related inquiries or require medical examinations. 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” (e.g., vision tests; blood, urine, and breath analyses; blood pressure screening; cholesterol testing; etc.).
Per the EEOC’s guidance, a COVID-19 vaccination is not a medical examination. If a vaccine is being administered for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairment or health status.
Although the EEOC appears to have greenlighted workplace vaccination policies, it cautions that an employer’s authority to do so is not carte blanche. The CDC has advised healthcare professionals to ask certain pre-screening questions before administering the vaccine to ensure that there is no medical reason preventing a person from receiving the vaccine, which may implicate the ADA’s provision on disability-related inquiries. If such pre-screening questions do elicit information about a disability, an employer must show that the questions are job-related and consistent with business necessity.
To avoid implicating the ADA’s provision regarding disability-related inquiries, the EEOC offers two suggestions. First, employers can offer the vaccine on a voluntary basis. If an employee refuses to answer pre-screening questions, the employer can decline to administer the vaccine but may not retaliate against, intimidate, or threaten the employee for refusing to answer questions. Second, employers can require that employees get vaccinated from a third-party unaffiliated with the employer (e.g. pharmacy or personal healthcare provider) and simply require the employee provide proof of the vaccination.
The EEOC does not consider requesting proof of vaccination to be a disability-related inquiry because it is not likely to elicit information about a disability. If, however, employees indicate that they are unable to receive a vaccine, asking why might elicit information about a disability that would be subject to ADA protections.
If an employee indicates that she is unable to get the vaccine due to a disability, an employer can only exclude that employee from the workplace if she poses a direct threat due to the significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation. If no reasonable accommodation can be provided to reduce the risk of an unvaccinated employee from entering the workplace, then an employer can exclude the employee from physically entering the workplace. However, that does not mean that the employer can automatically fire the unvaccinated employee. The employer must consider other rights the employee might have under other federal employment or state laws.
The EEOC also recognizes that some employees may object to getting the vaccine because of a sincerely held religious belief or practice. Under Title VII, an employer may not discriminate against an employee on the basis of their religion, which is defined broadly and protects beliefs, practices, and observances with which an employer may not be familiar. Employers must provide reasonable accommodations to such employees unless doing so poses an “undue hardship.” The EEOC encourages employers to assume employees have a sincerely held religious belief if they request a reasonable accommodation, but if an employer has an objective basis for questioning the religious nature of a belief or whether it is a belief sincerely held by the employee, the employer may be justified in requesting additional information from the employee.
Just like with the ADA, if a reasonable accommodation does not exist for an employee who cannot be vaccinated due to a sincerely held religious belief, the employer may lawfully exclude that employee from the workplace but cannot automatically terminate the employee without considering whether the employee has rights under other applicable laws.
Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment; (2) acquire genetic information except in limited circumstances; or (3) disclose genetic information.
The EEOC contends that administering a COVID-19 vaccine or requiring employees to provide proof that they have been vaccinated does not violate GINA because it does not involve the use of genetic information to make employment decisions, nor does it involve the acquisition of genetic information.
However, like with the ADA, the screening questionnaires for the vaccine may implicate GINA. Genetic information is defined by GINA to include, among other things, not only information about an individual’s genetic tests, but also the manifestation of a disease or disorder in a family member (i.e. family medical history). If the screening questionnaire does not include questions about genetic information, then asking the questions does not implicate GINA (although it might still implicate the ADA). If the pre-screening questionnaire does ask about genetic information, employers should consider simply requesting proof of vaccination rather than administering the vaccine themselves. GINA does not prohibit an employee’s own healthcare provider from asking about genetic information.
Employers should remain mindful of changes in the pandemic, CDC and other public health guidance, and how any employment practice may implicate federal and state employment laws. The attorneys at Chilivis Grubman assist businesses of all types and sizes in connection with employment-related litigation, as well as investigations by the EEOC. If you need assistance with such a matter, please contact us today.