Now that people are beginning to receive COVID-19 vaccines, employers and employees are wondering whether it’s legal for employers to have mandatory vaccination policies.
Do the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act (“Title VII”), or the Genetic Information Nondiscrimination Act (“GINA”) prohibit mandatory vaccinations?
On December 16th, the Equal Employment Opportunity Commission (EEOC) updated its guidance to address this issue.
Vaccinations and the ADA
The EEOC stated a vaccine is not a medical examination for purposes of the ADA, though pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquiries. For this reason, if the employer administers the vaccine, it must show that such pre-screening questions are “job-related and consistent with business necessity.”
To meet this standard, an employer must 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.
If employees receive their vaccinations from a third party that doesn’t have a contract with the employer, such as a pharmacy or other health care provider, the employer doesn’t have to meet this standard.
Further, according to the EEOC, simply asking for proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. Questions such as why an individual wasn’t vaccinated are subject to the ADA standard that they be “job-related and consistent with business necessity.”
What about employees who say their disabilities mean they can’t be vaccinated? In this situation, 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 guidance describes the factors that employers should conduct in determining whether a direct threat exists:
• 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.
If an employer determines that an individual who cannot be vaccinated due to disability poses a direct threat at the worksite by exposing others to the virus at the worksite, the employer cannot exclude the employee from the workplace—or take any other action.
The only exceptions are if there is no way to provide a reasonable accommodation that would eliminate or reduce this risk so the unvaccinated employee won’t pose a direct threat, or if the accommodation would cause an unreasonable hardship to the employer.
If the employer can’t reduce a direct threat to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this doesn’t necessarily mean the employer can fire the worker.
For example, the employee may be entitled to accommodations such as performing the current position remotely. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that don’t constitute an undue hardship.
Vaccinations and Title VII
What if an employee refuses to be vaccinated for COVID-19 because of a sincerely held religious belief, practice, or observance?
The employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act, which prohibits employment discrimination based on religion.
If an employee can’t be vaccinated for COVID-19 because of sincerely held religious belief, practice, or observance, and no reasonable accommodation is possible, the employer can exclude the employee from the workplace, but again, will have to carefully evaluate whether it’s lawful to terminate the worker’s employment.
Vaccinations and GINA
Neither administering COVID-19 vaccinations to employees nor requiring employees to provide proof of a COVID-19 vaccination implicates Title II of the Genetic Information Nondiscrimination Act, even when a vaccine uses messenger RNA (mRNA) technology, as the Pfizer and Moderna vaccines do.
If, however, administration of the vaccine requires pre-screening questions that ask about genetic information, those inquiries may violate GINA.
Title II of GINA provides that employers may not use genetic information to make decisions related to the terms, conditions, and privileges of employment, or acquire or disclose genetic information except in specified circumstances.
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Please feel free to contact us if you have questions about the above or if you need any help with any other employment related issues.
Also, remember that December 31st is the last day for you to make “annual exclusion” gifts for 2020. These gifts do not count toward your gift/estate tax exemption and can be up to $15,000 per person per year ($30,000 if your spouse joins in the gift).
