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On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Technical Assistance Questions and Answers to address the legal implications when mandating the COVID-19 vaccination under federal Equal Employment Opportunity (EEO) laws, including the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). The takeaways are:

  1. A COVID-19 vaccination is not a “medical examination” under the ADA, but pre-screening vaccination questions may be disability-related “inquiries” and must be “job-related and consistent with business necessity.”

The ADA limits employers’ ability to require “medical examinations.” However, according to the EEOC, the administration of a COVID-19 vaccination doesn’t fit the definition of a “medical examination” because “the employer is not seeking information about the individual’s impairments or current health status.”

Although the administration of a COVID-19 vaccination is not a “medical examination,” pre-screening questions may implicate the ADA’s provision on “disability-related inquiries,” which are inquiries likely to elicit information about a disability. Thus, if an employer administers the vaccination, it must show that any pre-screening questions it asks employees are “job-related and consistent with business necessity.”

However, if an employer offers a vaccination to employees on a voluntary basis or if the vaccination program is mandatory but employees can obtain a vaccination through their own preferred means (via a third-party, such as a pharmacy), then disability-related screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. Additionally, an employer may ask an employee for proof of receipt of the vaccination, so long as there is not subsequent questioning.

  1. If an employee cannot take the COVID-19 vaccination due to a disability, an employer may need to accommodate that employee if a “direct threat” exists.

            If an employee seeks accommodation from a mandatory vaccination requirement due to a disability, an employer must show that the individual 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.”

To determine whether a “direct threat” exists, an employer must conduct an individualized assessment of four factors: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. If, after an assessment is conducted, an employer determines that an unvaccinated employee would pose a direct threat, then the employer must consider reasonable accommodations (absent undue hardship) to eliminate or reduce the risk of a direct threat. If no reasonable accommodation is possible, an employer may exclude an employee from physically entering the workplace.

  1. If an employee cannot take the COVID-19 vaccination due to a sincerely held religious belief, an employer may need to accommodate that employee.

If an employee objects to receiving the vaccine because of a sincerely held religious belief, practice, or observance, the employer must provide reasonable accommodations (absent undue hardship). An employer may request supporting information regarding such religious accommodation. If no reasonable accommodation is possible, an employer may exclude an employee from physically entering the workplace.

As the situation surrounding COVID-19 vaccinations rapidly changes, and as rules and laws change, we continually review and adjust our clients’ policies, plans, and workplace procedures to reflect the most recent developments. If you are an employer, we can assist in developing your workplace and vaccination policies to ensure you have a safe and compliant workplace.

Dan Ward

Author Dan Ward

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