On the heels of the US Food and Drug Administration’s first issuance of an Emergency Use Authorization for a coronavirus (COVID-19) vaccine, the Equal Employment Opportunity Commission published an updated technical assistance bulletin that begins to address some of the questions employers have raised regarding whether they can require employees to get vaccinated for COVID-19, as well as considerations employers should be aware of if they do offer a COVID-19 vaccination program.
The Equal Employment Opportunity Commission (EEOC) updated its Technical Assistance Questions and Answers on COVID-19 issues to address vaccination implications for employers on December 16. The EEOC explained it was providing this guidance as the availability of COVID-19 vaccinations may raise questions about the applicability of various equal employment opportunity laws, including the Americans with Disabilities Act (ADA), Rehabilitation Act, Pregnancy Discrimination Act, Title VII of the Civil Rights Act (Title VII), and Genetic Information Nondiscrimination Act (GINA). This long-awaited guidance begins to answer some of the myriad of questions facing employers with respect to COVID-19 vaccinations.
Perhaps the most pressing question from employers has been whether and to what extent companies are permitted to mandate COVID-19 vaccinations for their employees. The EEOC’s COVID-19 guidance indirectly confirms that employers may require employees to get vaccinated for COVID-19 once vaccines are available. Additionally, in a series of questions and answers, the EEOC set forth the same analysis regarding the interactive process and reasonable accommodations that may be required for individuals with a disability or sincerely held religious beliefs that it applied in the context of the flu vaccine in its 2009 Pandemic Preparedness Guidance.
As in this earlier guidance, the EEOC advises that if an employee is unable to receive a COVID-19 vaccination due to a disability, the employer must engage in the interactive process and review whether there are any reasonable accommodations that would eliminate or reduce the risk of the employee posing a direct threat to the health or safety of others. In conducting this analysis, the EEOC instructs that where a safety-based qualification—such as a vaccination requirement—screens out or tends to screen out an individual with a disability, an employer must conduct an individualized assessment of several factors, including the nature and severity of the potential harm and the likelihood that potential harm will occur.
In order to support the conclusion that an unvaccinated employee poses a direct threat, which cannot be mitigated, the EEOC explains that an employer must demonstrate that (1) the unvaccinated individual will expose others to the virus at the worksite; and (2) there is no way to provide a reasonable accommodation (absent undue hardship to the employer) that would eliminate or reduce this risk of the unvaccinated employee posing a direct threat. Even where an unvaccinated employee poses a direct threat that cannot be mitigated by workplace accommodations, the EEOC notes that the employer should evaluate other options—such as remote work, paid leave under state or federal leave laws, and job-protected unpaid leave—rather than terminating the employee due to his or her inability to receive a vaccine on account of a disability.
Similarly, the guidance instructs that employers must also provide a reasonable accommodation for sincerely held religious beliefs, practices, or observances that prevent an employee from receiving the vaccination, unless doing so would have more than a de minimis cost or burden on the employer. The EEOC cautions that unless an employer has an objective basis for questioning either the religious nature or the sincerity of an employee’s asserted belief, practice, or observance, the employer should assume that the religious basis for the request is indeed “sincerely held.” However, where an employer has an objective basis for questioning the nature or sincerity of the belief, an employer may request additional supporting information.
The EEOC clarified that administration of a vaccine is not a medical examination under the ADA, because an employer that administers a vaccine does so to protect against contracting COVID-19, not to seek information about an individual’s impairments or current health status.
While the administration of a vaccine is not itself a medical examination, the administration process will necessarily be accompanied by a series of prescreening questions to ensure that there is no medical reason that would prevent a person from safely receiving the vaccine, such as an allergy to one of the ingredients in the vaccine. The EEOC clarified that when an employer asks these prescreening questions, or has a contracted medical provider ask them on the employer’s behalf, in connection with a vaccination requirement, the questions constitute disability-related inquiries. This means the prescreening questions must be job related and consistent with business necessity.
To meet this standard, an employer would need to demonstrate the existence of a reasonable belief, based on objective evidence, that an employee who does not answer the prescreening questions (and, thus, does not receive the vaccine) will pose a direct threat to the health or safety of themselves or others. The EEOC does not address whether vaccines may be required for individuals working remotely who do not interact with other employees or personnel on behalf of their work for the employer, but it may be difficult for an employer to establish that there is a bona fide direct threat posed by unvaccinated fully remote workers.
Notably, if an employer elects to simply offer or recommend the vaccine to its workers, the attendant prescreening questions do not need to be “job related and consistent with business necessity,” as long as the prescreening questions (and the vaccination) are truly voluntary. If an employee elects not to answer these questions, the employer may decline to administer the vaccine, but may not retaliate against, intimidate, or threaten the employee for refusing to answer the questions or remain unvaccinated. In order for a vaccination (and, in turn, the prescreening questions) to be truly voluntary, the employer would need to exercise caution to not take any actions that could be construed as coercive or retaliatory for those employees who choose to remain unvaccinated.
Finally, the EEOC’s guidance offers a third viable option for employers. If employers require their employees to provide proof of vaccination (as opposed to directly administering the vaccination or contracting with a third party to do so), any prescreening medical questions asked by an unaffiliated vaccine provider (meaning one that does not have a contract with the employer to administer COVID-19 vaccines), such as a pharmacy or other healthcare provider, do not need to meet the “job related and consistent with business necessity” restrictions. Likewise, as requesting or mandating proof of vaccination from an employee does not constitute a disability-related inquiry, such request or mandate also does not need to be “job related and consistent with business necessity.”
However, the EEOC cautioned that any subsequent questions asked in the event an employee did not receive a vaccination would need to meet this standard, and further that employees should be instructed not to provide any other medical information (including genetic information) when providing proof of vaccination.
The EEOC’s guidance does not address the implications of whether a vaccine is approved by the FDA under an Emergency Use Authorization (EUA) or full licensing approval. Notably, in one of the questions posed, the EEOC refers to a vaccine that “has been approved or authorized by the Food and Drug Administration” (emphasis added), which seems to suggest the guidance applies to vaccines that have merely received an EUA and not full approval. The EEOC also included information regarding where employers may find additional information on the FDA’s EUA of COVID-19 vaccines, but cryptically quoted FDA guidance that requires vaccine recipients be informed “that they have the option to accept or refuse the vaccine.” This is, of course, true. But the EEOC provided no guidance on the next obvious question, namely, “What can an employer do if an employee refuses a vaccine that has only been approved under an EUA?”
The EEOC confirmed that administering a COVID-19 vaccine to employees or requiring that employees provide proof of vaccination does not implicate GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by GINA. However, the EEOC noted the possibility that the required prescreening questions could elicit information about genetic information. While the screening checklists for contraindications remain unknown, should they include questions about genetic information (such as regarding the immune systems of family members), that would create a roadblock for employers seeking to administer the vaccine directly or through a contracted entity. Instead, if that is the case, employers may only be left with the option to require proof of vaccination from their employees.
With the issuance of this new technical assistance, employers now have some initial guidance to follow as they begin to plan for how a COVID-19 vaccine requirement or recommendation may be integrated into their workforces. We expect that additional guidance will be forthcoming from other federal and state agencies in the coming weeks and months. This LawFlash reflects our current analysis of potential legal issues that may emerge and is intended to help employers begin to work through these topics. Morgan Lewis has advised employers on numerous COVID-19 issues and will continue to monitor and analyze any new developments closely.
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Susan Feigin Harris