EEOC Weighs In on COVID-19 Vaccines, Raising Medical Inquiry, Accommodation and Discrimination Concerns

By Tracey Truesdale and Michael Warner - Franczek P.C.

December 17, 2020

On December 16, 2020, the U.S. Equal Employment Opportunity Commission (EEOC) expanded on its COVID-19 Q&A guidance to address the interplay of vaccines with employment discrimination laws.  While the agency confirms that employers may require mandatory vaccination as a condition of employment for most employees without violating federal discrimination laws, there are medical inquiry, accommodation and discrimination concerns to consider in evaluating whether to adopt a workplace vaccination program.

The guidance starts with the pronouncement that “[t]he EEO laws do not interfere with or prevent employers from following CDC or other federal, state, and local public health authorities’ guidance and suggestions”.  It then affirms that a COVID-19 vaccine is not a medical examination under the Americans With Disabilities Act (ADA).  However, any pre-screening vaccination questionnaire is considered a medical inquiry, such that an employer that administers a questionnaire will need to show that the pre-screening questions are “job-related and consistent with business necessity”.  Pre-screening questions may also implicate the Genetic Information Nondiscrimination Act (GINA) if they solicit genetic information, such as family members’ medical histories.  Any information gathered by an employer in administering a vaccination program must be kept confidential, including relegating that information to a file separate from other personnel documents.

How to avoid triggering GINA or the ADA’s “job-related and consistent with business necessity” requirement in connection with pre-screening questions?  The simplest way, discussed more fully below, is for an employer to advise employees that they need to provide proof of vaccination in order to work but that it is up to them as to how to they obtain the vaccination so that the employer stays out of the pre-screening process altogether. Alternatively, employers can make both getting the vaccine and answering any pre-screening questions voluntary.  If an employee refuses to answer the questions, the employer can then decline to administer the vaccine but cannot retaliate against the employee for refusing the vaccine or not answering the questions.

Employers will need to consider potential reasonable accommodations for employees who decline vaccination on medical or religious grounds. Where the employee’s refusal to be vaccinated is based on a medical reason, the employer must assess whether the unvaccinated employee’s presence in the workplace poses a “direct threat” to the safety of others, and more specifically, whether the unvaccinated employee will expose others to the virus at the worksite.  In assessing whether a “direct threat” exists, employers must consider the following:

- 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 the employer determines that the unvaccinated employee poses a direct threat, it must then assess whether there is a way to provide a reasonable accommodation that would eliminate or reduce the risk of infection posed by the unvaccinated employee.  This assessment requires that the employer and employee engage in the same interactive process that would be used in evaluating any ADA request for accommodation.  The employer cannot exclude the employee from the workplace or take any other action, including termination, without first making this assessment.

When an employee refuses to be vaccinated based on religious grounds, employers must undertake a similar reasonable accommodation assessment.  The EEOC warns that because the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.

Whether the employee’s objection to vaccination is medical or religious, if there is no reasonable accommodation available, the employer can bar the employee from physically entering the workplace. This does not, however, give an employer the green light to terminate the employee.  The employee may be able to work remotely or may be eligible to take leave under the Families First Coronavirus Response Act (FFCRA), Family and Medical Leave Act (FMLA), or other leave law or employer policy.  Managers, human resources personnel, and other employer representatives who are responsible for communicating with employees about any vaccination requirement must understand how to recognize a potential accommodation request so that it can be processed accordingly.

Declining to be vaccinated out of fear of or uncertainty about the safety of the vaccine is not a basis for declining a vaccine under the discrimination laws enforced by the EEOC.

Given the intricacies involved in adopting a mandatory vaccination program, we anticipate that many employers may elect to adopt voluntary programs or at least send employees off-site for any mandatory vaccine.  Whether a COVID-19 vaccination program is mandatory or voluntary, onsite or off, employers should be careful in how they gather proof of vaccinations.  Asking whether an employee has received the vaccine is not a medical inquiry under the ADA, but  asking why an employee has not been vaccinated may elicit information about a disability that in turn will trigger the need to engage in the reasonable accommodation described above.  Accordingly, the EEOC advises that if employers require employees to provide proof that they have been vaccinated by a pharmacy or health care provider, they should instruct employees not to provide any medical information as part of their response.

The Occupational Safety and Health Administration (OSHA) has yet to weigh in on required COVID-19 vaccinations, and we anticipate that guidance from the EEOC, OSHA and other governmental agencies will evolve as the COVID-19 vaccine is rolled out across the country and in our communities.