On December 16, 2020, the EEOC issued updated guidance to provide clarification on employer COVID-19 vaccination policies.

The EEOC reiterated that mandatory COVID-19 vaccination policies are permissible, but addressed specific questions of those policies under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act of 1964 and the Genetic Information Non-Discrimination Act (“GINA”). You can find the updated guidance in Section K, here. The following summarizes the EEOC’s updated interpretation of COVID-19 policies and practices under these laws.

ADA Considerations for Employers Who Administer Vaccinations Either Directly or Through Third Party Contractors.

For purposes of the ADA, when an employer either directly or under contract through a third party administers a mandatory COVID-19 vaccination, it is not a “medical examination.” However, pre-screening questions to determine if the employee is medically prevented from receiving the vaccine are likely to elicit information about a disability and are “medical inquiries” covered by the ADA. Those pre-screening questions are only permissible under the ADA if they are “job-related and consistent with business necessity.” To establish this, the employer would “need to have a reasonable belief, based on objective evidence” that if the employee does not receive the vaccination, he or she would pose a “direct threat to the health or safety of him or herself or others.”

The EEOC provided two circumstances in which the prescreening questions need not be job-related and consistent with business necessity: 1) if the employer-provided vaccination is offered on a voluntary basis and, therefore, the employee’s decision to answer the question is voluntary (but the employee cannot be retaliated against for refusing to answer the questions); and 2) the employee receives the employer-mandated vaccine from a third party not under contract with the employer.

Asking an employee to show proof of a vaccine from a third party is not a disability-related inquiry.  However, inquiries about why an employee has not received a vaccine, may elicit disability-information and must be “job-related and consistent with business necessity.”  The EEOC recommends warning an employee not to provide any medical information when providing proof of the vaccination from an unrelated third party provider.

Managers and supervisors who communicate with employees about compliance with an employer’s vaccination policy, should know to recognize a request for an accommodation and to whom the request should be referred

When Employees Are Medically Unable to Receive a Vaccination

Consistent with prior Guidance, the EEOC reiterated that an employer may adopt a qualification standard that an employee not pose a “direct threat to the health or safety to the individual or others that cannot be eliminated or reduced by reasonable accommodation.” To screen out an employee under this standard, employers should conduct an “individualized assessment” based upon the following 4 factors: 1) the duration of the risk; 2) the nature and severity of the potential harm; 3) the likelihood that the potential harm would occur; and 4) the imminence of the potential harm.

In determining whether waiving the vaccination requirement is an “undue hardship,” the employer should consider the prevalence of other workers in the workplace who have had COVID-19 vaccinations and the amount of contact with others whose vaccination status is unknown.

While the EEOC acknowledges that there may be situations in which an accommodation is not possible, it states that an employer may be excluded from the workplace but should not automatically terminate the employee.  Instead, the employer should determine whether other accommodations are available, such as remote work, or the employee is entitled to leave under other federal, state or local laws, such the Family and Medical Leave Act (“FMLA”) or the Families First Coronavirus Relief Act (“FFCRA”).

Accommodating Religious Beliefs Under Title VII

Title VII may require reasonable accommodation for employees who cannot receive a vaccination for a sincerely held religious belief unless it would constitute an “undue hardship.”  The EEOC reiterated that an “undue hardship” for purposes of Title VII, means that providing an accommodation would be more than a “de minimis cost or burden on the employer.”

The EEOC cautioned that an employer should assume that an employee’s request for a religious accommodation is based upon a “sincerely held belief” and only question the religious nature or sincerity of the belief if it has an objective basis for questioning the religious nature or sincerity of the belief.

If there is no reasonable accommodation possible for and employee’s religious belief, then the employer may exclude the employee from the workplace. The employer, however, may not automatically terminate the employee, but rather should consider any other rights under federal state or local law, such as the FMLA and the FFCRA.

Vaccinations and the GINA

At least one of the COVID-19 vaccines uses messenger RNA (mRNA) which, according to the EEOC, has raised the question of whether a mandatory vaccination is an unlawful use of genetic information. Referring to information from the CDC, the EEOC stated that these vaccines do not interact with DNA, so it does not violate GINA’s prohibitions on using, acquiring or disclosing genetic information.

Any pre-vaccination medical screening by the employer or an employer’s third party contractor may violate GINA if it elicits information about genetic information.  Genetic information includes information about the employee or family member’s genetic tests, family medical history, participation in genetic services or research studies, and genetic information about a fetus carried by the individual or family member or an embryo of the employee or family member using assisted reproductive technology.

The EEOC recommends that if vaccination pre-screening questions include questions about genetic information, including family history, that the employer request proof of vaccination, rather than administering the tests themselves. The EEOC further recommends that employers warn employees not to provide genetic information when the employer requests proof of vaccination.