EEOC Update on Employer Mandates of the COVID-19 Vaccine - Part I
Okay, so it’s here. The Vaccine. As many of us are seeing across the United States, our healthcare workers, our 65-year-olds and above, and those with underlying conditions are starting to receive this first round of vaccinations. Isn’t this what we have all been waiting for…. to punch back COVID-19 forever and rid it of our lives and definitely all the havoc it reeked on us in 2020?
Well hold up there, now remember back in November I blogged about some of the new issues that would arise for employers with the vaccine. See that blog post here. At the time, the EEOC had not given us new guidance. Well on December 16, 2020, the United States Equal Employment Opportunity Commission (EEOC) changed all that when it released an expansion of its never-ending guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and other EEO Laws.”
This guidance includes a new section providing information to employers and employees about how a COVID-19 vaccination interacts with the legal requirements of the Americans with Disabilities Act (ADA), the Rehabilitation Act, Title VII of the Civil Rights Act of 1964 including the Pregnancy Discrimination Act, the Genetic Information Nondiscrimination Act (GINA).
This Part I blog post discussed the EEOC’s comments about the ADA and the Vaccine. Part II will cover ADA accommodations, Title VII and GINA.
The below summary about the ADA and the Vaccine are issues pertaining to medical pre-screening questions and employer accommodations for those unable to receive a vaccination. Highlights are as follows:
PRE-SCREENING QUESTIONS - While the EEOC states the administration of the COVID-19 vaccine to an employee by an employer (or third party contracted by employer) are not a “medical examination” for purposes of the ADA, the pre-screening vaccination questions “may implicate the ADA’s provision on disability-related inquiries, which are inquiries likely to elicit information about a disability.” So if the employer is administering the vaccine, it must show that such pre-screening questions it asks employees are “job-related and consistent with business necessity.” Note that the EEOC completely recognizes that the CDC states these questions should be asked by health care providers to ensure there is no medical reason that would prevent the person from receiving the vaccine which indicates of course that not asking questions and administering the vaccine is out of the question. Section, Question K.1 & K.2
CIRCUMSTANCES WHERE “Job-related and consistent with business necessity” REQUIREMENT NOT REQUIRED - EEOC identifies two circumstances where the screenings can occur without this requirement with the first being if an employer has offered a vaccination to employees on a voluntary basis (i.e. employees choose whether to be vaccinated) then the ADA requires that the employee’s decision to answer questions also be voluntary. So the employee can refuse to answer the questions and Employers can refuse to administer the vaccine but EEOC warns Employers to be careful not to retaliate against these employees. The second scenario the EEOC says where the “job-related and consistent with business necessity” would not apply if the 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).
CONFIDENTIALITY- EEOC says do not forget to keep all this vaccine info about employees CONFIDENTIAL!
PROOF OF VACCINE - EEOC says this is not a disability-related inquiry, although the follow-up questions of “why not” may elicit disability-related information. EEOC states employers may want to consider warning employees not to provide any medical information as part of “the proof” in an effort to avoid implicating the ADA.
So overall, Employers need to tread lightly as to whether they want to require the vaccine due to the ADA issues that may come up just on the initial screening and in obtaining proof of the vaccine. My next blog will be part II of the EEOC Update on Employer Mandates of the COVID-19 Vaccine covering ADA Accommodations, GINA and the Title VII matters.