Labor & Employment Law Daily New EEOC Q&As discuss COVID-19 vaccination implications under ADA, Title VII and GINA
Friday, December 18, 2020

New EEOC Q&As discuss COVID-19 vaccination implications under ADA, Title VII and GINA

By Pamela Wolf, J.D.

A vaccine administered by the employer (or employer-contracted third party) is not a “medical examination” for ADA purposes, says the EEOC, but employer-posed pre-screening questions likely to elicit disability information need to be “job-related and consistent with business necessity.”

As the first vaccines for COVID-19 were rolling out the door to those who are first in line to get them, the EEOC updated and expanded its technical assistance publication on December 16 addressing pandemic-related questions under the federal EEO laws to include issues surrounding vaccinations. The agency has periodically updated the publication, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

The series of COVID-19-related questions and answers now includes Section K, which provides information about the how vaccinations interact with the legal requirements of the ADA, Title VII, and GINA, including issues pertaining to medical pre-screening questions and employer accommodations for those who are unable to receive a vaccination.

Under the ADA. The Q&A makes several important points about how the ADA may apply in vaccination-related circumstances, some of which are highlighted here:

  • Medical exams. A COVID-19 vaccine approved or authorized by the FDA that is administered to an employee by an employer (or a third party with whom the employer contracts to administer a vaccine) is not a “medical examination” for ADA purposes. However, pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries, which are those likely to elicit information about a disability. If the employer administers the vaccine, it must show that the pre-screening questions it asks employees are “job-related and consistent with business necessity.”
  • Mandatory vaccines and direct threat. The CDC has said that healthcare providers should ask certain questions before administering a vaccine to ensure there is no medical reason that would prevent the person from receiving the vaccination. If the employer requires an employee to receive the vaccination given by the employer (or a third party with whom the employer contracts to administer a vaccine) and asks these screening questions, they are subject to the ADA standards for disability-related inquiries. To meet this standard, the employer must have a reasonable belief, based on objective evidence, that an employee who does not answer the questions, and thus does not receive a vaccination, will pose a direct threat to their own health or safety or that of others.
  • Voluntary vaccines, voluntary pre-screening questions. Disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement when an employer has offered a vaccination to employees on a voluntary basis (i.e., employees choose whether to be vaccinated), but the ADA requires that the employee’s decision to answer pre-screening, disability-related questions also must be voluntary. Where an employee chooses not to answer these questions, the employer may decline to administer the vaccine but is prohibited from retaliating against, intimidating, or threatening the employee for refusing to answer any questions.
  • Third-party providers. When 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 healthcare provider, the ADA “job-related and consistent with business necessity” restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.
  • Proof of vaccination. Asking or requiring an employee to show proof of vaccination is not a disability-related inquiry. There are many reasons that may explain why an employee has not been vaccinated that may or may not be disability-related. Merely requesting proof of vaccination is not likely to elicit information about a disability and thus is not a disability-related inquiry. But subsequent employer questions, such as why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the “job-related and consistent with business necessity” standard. Where the employer requires employees to provide proof of vaccination from a pharmacy or their own healthcare provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

Rejection of employer-mandated vaccination based on disability. Where an employer requires vaccinations when they are available, and an employee indicates they are unable to receive a COVID-19 vaccination because of a disability, the EEOC discussed how the employer should respond. Under the ADA, an employer may 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 a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show 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.”

Individualized assessment of direct threat. Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists:

  • 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 the potential harm.

An employer’s conclusion that a direct threat exists would include a determination that an unvaccinated individual will expose others to the virus at the worksite. Note that where an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace, or take any other action, unless there is no way to provide a reasonable accommodation—absent undue hardship—that would eliminate or reduce this risk so that the unvaccinated employee does not pose a direct threat.

Direct threat cannot be mitigated. Where the direct threat cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the worker. The employer must determine if any other rights apply under the EEO laws or other federal, state, and local authorities.

Example: Where an employer excludes an employee based on an inability to accommodate a request to be exempt from a vaccination requirement, the employee may be entitled to accommodations, such as performing the current position remotely. This is the same step that employers take when physically excluding employees from a worksite due to a current COVID-19 diagnosis or symptoms; some workers may be entitled to telework or, if not, may be eligible to take leave under the Families First Coronavirus Response Act, under the FMLA, or under the employer’s leave policies.

Recognizing and following up on accommodation request. The EEOC said that managers and supervisors responsible for communicating with employees about vaccination requirement compliance should know how to recognize an accommodation request, as well as to whom the request should be referred for consideration. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not amount to undue hardship (significant difficulty or expense).

Undue hardship.This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position. The prevalence in the workplace of employees who already have received a vaccination and the amount of contact with others, whose vaccination status could be unknown, may impact the undue hardship consideration. (The Job Accommodation Network website includes materials specific to COVID-19.).

Employers may rely on CDC recommendations in determining whether an effective accommodation that would not pose an undue hardship is available, but there may be situations where an accommodation is not possible. The facts about specific job duties and workplaces may be relevant in reaching this decision. Employers also should consult applicable OSHA standards and guidance, including its COVID-specific resources.

Confidentiality and retaliation. The EEOC also noted that it is unlawful to disclose that an employee is receiving a reasonable accommodation or to retaliate against an employee for requesting an accommodation.

Vaccination refusal based on religious beliefs. Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the COVID-19 vaccination, the employer 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.

Undue hardship. Courts have defined “undue hardship” under Title VII as “having more than a de minimis cost or burden” on the employer.

Is it based on religion? Because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that a request for religious accommodation is based on a sincerely held religious belief, according to EEOC guidance.

On the other hand, if the employer has an “objective basis for questioning either the religious nature or the sincerity of a specific belief, practice, or observance, the employer would be justified in requesting additional supporting information.”

Accommodation not possible. The EEOC noted that when an employee cannot get vaccinated for COVID-19 because of a disability or sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, then it would be lawful for the employer to exclude the employee from the workplace. However, this does not mean the employer may automatically terminate the worker. Employers must determine whether any other rights apply under the EEO laws or other federal, state, and local authorities.

GINA not implicated by employer-administered vaccination or proof requirements. The EEOC said that Title II of GINA is not implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination, because this 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. This applies to vaccinations that use messenger RNA (mRNA) technology. However, if administration of the vaccine requires pre-screening questions that ask about genetic information, the inquiries seeking genetic information, such as family members’ medical histories, may violate GINA.

Prohibitions. 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 six narrow circumstances; or
3. Disclose genetic information except in six narrow circumstances.

Even mRNA technology is permissible under GINA.Certain COVID-19 vaccines use mRNA technology. This raises questions about genetics and, specifically, about whether such vaccines modify a recipient’s genetic makeup, and thus, whether requiring an employee to get the vaccine as a condition of employment is an unlawful use of genetic information. However, the CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” Therefore, requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information, according to the EEOC.

Pre-vaccination screening questions under GINA. The question of whether asking an employee the pre-vaccination screening questions before administering a COVID-19 vaccine implicates Title II of GINA is a little trickier. As mentioned earlier, these questions are likely to elicit information about disability. They also may elicit information about genetic information, such as questions about the immune systems of family members. The EEOC observed that it is not yet clear what screening checklists for contraindications will be provided with COVID-19 vaccinations.

Genetic information. GINA defines “genetic information” to mean:

  • Information about an individual’s genetic tests;
  • Information about the genetic tests of a family member;
  • Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
  • Information about requests for, or receipt of, genetic services, or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
  • Genetic information about a fetus carried by an individual or family member, or of an embryo legally held by an individual or family member using assisted reproductive technology.

Screening checklists questions. Where pre-vaccination questions do not include any questions about genetic information (including family medical history), then asking them does not implicate GINA. However, where there are questions about genetic information, then employers that want to ensure employees have been vaccinated may want to requestproof of vaccination instead of administering the vaccine themselves.

Note that GINA does not prohibit an employee’s own healthcare provider from asking questions about genetic information, but it does prohibit an employer or a doctor working for the employer from asking questions about genetic information.

Warning in proof request. Where an employer requires employees to provide proof that they have received a vaccination from their own healthcare provider, the EEOC suggested that the employer warn the employee not to provide genetic information as part of the proof. So long as this warning is provided, any genetic information the employer receives in response to its request for proof of vaccination will be considered inadvertent and thus not unlawful under GINA.

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