December 21, 2020
On December 16, 2020, the EEOC updated its FAQs that cover a variety of COVID-19-related issues by adding several new FAQs directly addressing issues relating to employer-mandated COVID-19 vaccinations. The EEOC does not mandate that employers require vaccinations; however, it does allow employers to do so if they follow applicable laws. Keep in mind that employees who refuse to take the vaccine may not be excluded from the workplace, unless the employer determines that there is a direct threat to health and safety at the worksite and no other reasonable accommodation with the employee can be made. The FAQs provide more detail concerning issues surrounding employees who refuse to get vaccinated due to a disability or for religious reasons.
The EEOC states that an employer-mandated vaccination is not a “medical examination” under the ADA. However, if the employer follows CDC (Centers for Disease Control) guidelines and asks pre-screening questions of employees to figure out whether they have medical reasons for not taking the vaccine, then those questions are subject to the ADA, which requires the employer to show that the questions are “job-related and consistent with business necessity.” If the vaccinations are voluntary (and the pre-screening questions are also voluntary) then the employer does not have to make that showing. Similarly, if the employee obtains the vaccination from a third party that is not contracted to supply the vaccine by the employer, then the employer would not have to make that showing.
If an employee asserts an exemption from a mandatory vaccination requirement based on an ADA disability that prevents him from taking the vaccine, or if the employee’s sincerely held religious belief, practice or observance prevents him from taking the vaccine under Title VII of the Civil Rights Act, then the employer must (under most circumstances) provide reasonable accommodations for that employee. If the employer cannot provide such accommodation, then it should figure out whether the employee has other rights under federal or state law before terminating the employee.
The FAQs also cover some issues relating to GINA. According to the EEOC, the act of vaccinating by itself does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of genetic information, and does not implicate that statute. However, pre-screening questions may implicate GINA if they include questions about genetic information, such as questions about the immune systems of family members. As of the date of these new FAQs, it is unclear whether such information is needed to receive the vaccination.
Employers who are considering imposing a mandatory COVID-19 vaccination requirement on their workforces should be aware of these FAQs. Employers with questions concerning the implementation of a mandatory vaccination policy should consult with employment law counsel.
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