EEOC Releases Updated Guidance On Covid-19 Vaccinations And Employment Laws

On December 16, 2020, the Equal Employment Opportunity Commission (EEOC) updated its ongoing COVID-19 guidance, providing answers to several common questions raised by employers with respect to the now-available COVID-19 vaccine. Specifically, the publication provides information to employers and employees about how mandatory COVID-19 vaccination policies interact with the legal requirements of the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA). According to the guidance, employers may enforce mandatory COVID-19 vaccination policies without violating the referred laws, subject to compliance with certain restrictions and requirements under the ADA and Title VII.

Per section K of the EEOC guidance, the following matters should be considered by employers when implementing a COVID-19 vaccination program:

1. COVID-19 vaccination is not a “medical examination” under ADA. The EEOC guidance confirms that insofar as the administration of a COVID-19 vaccine is not a medical procedure or test that seeks information about an individual’s impairment or current health status, it is not considered to be a “medical examination” prohibited or limited by the ADA.

2. Pre-vaccination medical screening questions may implicate the ADA’s provision on disability-related inquiries. As pre-screening questions are likely to elicit information about a disability, the employer may ask these questions only when they are “job-related and consistent with business necessity.” To meet this standard, the EEOC explains that “an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.”

An exception to this requirement is recognized when the employer provides for a voluntary vaccination program. In such case, the ADA requires that the employee’s decision to answer pre-screening, disability-related questions must also be voluntary. If an employee chooses not to answer pre-screening questions, the employer may decline to administer the vaccine but may not retaliate against the employee for refusing to answer. The EEOC notes that another exception to the “job-related and consistent with business necessity” restriction exists when an employer-required vaccination program is administered by “a third party that does not have a contract with the employer, such as a pharmacy or other health care provider.”

3. The EEOC guidance reminds employers that the ADA requires employers to keep any employee medical information obtained during the vaccination program confidential.

4. Requiring proof of receipt of COVID-19 vaccination is not a disability-related inquiry under the ADA. Employers may request employees to provide proof of receiving a vaccine from another provider. However, the EEOC warns that “subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be job-related and consistent with business necessity.”

5. When employees indicate they are unable to receive a vaccination due to 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. The EEOC advises that employers conduct an individualized assessment of the following four factors: “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.”

6. Employers mandating vaccines must provide reasonable accommodation to employees who indicate they are unable to receive the vaccine due to sincerely held religious belief or practice, unless doing so would pose and undue hardship under Title VII of the Civil Rights Act. However, if an employer has an objective basis for questioning the nature or sincerity of a particular belief or practice, the employer would be justified in requesting additional information.

7. If an employer cannot exempt or provide a reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy because of a disability or sincerely held religious practice or belief, the employer, in most circumstances, may lawfully exclude the employee from the workplace.

8. Neither administering a COVID-19 vaccine to employees nor requiring employee to provide proof of a vaccination is prohibited by the Genetic Information Nondiscrimination Act (GINA). Because the U.S. Centers for Disease Control and Prevention (CDC) has explained that mRNA vaccines, as is the case with certain COVID-19 vaccines, “do not interact with our DNA in any way,” the EEOC concludes that requiring employees to receive an mRNA vaccination is not prohibited or governed by GINA.

If you have any questions or comments regarding this matter or if you’d like assistance to revise or modify your practices and policies accordingly, please contact any of the following attorneys from our Labor & Employment Practice Group at your convenience:

Juan J. Casillas Ayala787
Luis F. Llach-Zúñiga787
Israel Fernández Rodrí
Luis R. Ramos


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