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On December 16, 2020, the federal Equal Employment Opportunity Commission (EEOC) released updated guidance for employers regarding the newly authorized COVID-19 vaccinations being distributed across the United States. As the federal agency responsible for enforcing laws against employment discrimination and harassment, the EEOC’s guidance provides clarity on a number of legal considerations employers face in developing COVID-19 vaccination policies or programs.

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Initially, the EEOC’s updated guidance clarifies several compliance issues under the Americans with Disabilities Act (ADA) with respect to mandatory COVID-19 vaccinations and related medical inquiries.

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Vaccination is Not a Medical Examination. In its updated guidance, the EEOC squarely concludes that COVID-19 vaccines are not “medical examinations” under the ADA. The EEOC reasons that an employer who administers the vaccine is not seeking information about an employee’s current health status or impairments. Accordingly, administering a COVID-19 vaccine is not prohibited or limited by the ADA.

Requiring Proof of Vaccination. The EEOC guidance also states that asking employees to show proof that they have received COVID-19 vaccines is not a disability-related inquiry. While requesting details as to why an employee did not receive a vaccine is likely disability-related, the EEOC explains that simply “requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability.” For this reason, employers may ask for proof that an employee has received the vaccine without violating the ADA.

Pre-Vaccine Medical Screening. The EEOC takes a different approach, however, with respect to pre-vaccination medical screening inquiries finding that such questions may implicate the ADA. Whether conducted by the employer directly or a third party on the employer’s behalf, the EEOC explains that such questions are “likely to elicit information about a disability.” An employer is therefore required to show that any pre-vaccination screening questions are “job-related and consistent with business necessity,” where the employer must demonstrate that it has a reasonable belief that an employee who does not answer the questions or receive a vaccination will pose a direct threat to the health or safety of the employee and others.

The EEOC identifies several exceptions to this requirement. First, an employer may offer a COVID-19 vaccination, and any associated pre-screening questions, on a voluntary basis. If an employee refuses to answer the pre-screening questions, they may be denied a COVID-19 vaccination by the employer. The EEOC cautions, however, that an employer may not otherwise retaliate against an employee for refusing to answer pre-vaccination screening questions.

Second, employers are not required to show that pre-screening questions are “job-related and consistent with business necessity” if the questions and related vaccination are administered by a third party with no connection to the employer. For example, an employer who requires employees to receive a COVID-19 vaccination from the employee’s personal physician before returning to work is not responsible for any pre-screening questions asked by that physician. Employers should not, however, request copies of any pre-screening inquiries as part of the proof that an employee has received the COVID-19 vaccination.

Mandatory Vaccination Under Title VII and the ADA

The EEOC’s guidance also appears to provide employers with the green light to require COVID-19 vaccination for employees to return to the workplace. The EEOC considers this mandatory vaccination to be a form of “safety-based qualification standard” designed to prevent a “direct threat to the health or safety of individuals in the workplace.” As with other qualification standards, the EEOC cautions that employers must consider exceptions for disability or sincerely held religious beliefs.

Disability-Related Concerns. Where a vaccination requirement “screens out or tends to screen out an individual with a disability,” the EEOC advises that the employer must show: (1) that an unvaccinated employee will pose a “direct threat due to a significant risk of substantial harm to the health or safety of the individual or others”; and (2) that such a threat “cannot be eliminated or reduced by reasonable accommodation.” To do so, the EEOC guidance requires employers to conduct an individualized assessment of four factors: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm.

If an employer determines that a direct threat is posed by an employee being unable to receive a COVID-19 vaccination, the EEOC advises that an employer must explore whether a reasonable accommodation is possible. The EEOC identifies possible accommodations to include allowing remote work or permitting an employee to take available leave under the law or the employer’s policy. As in other situations, employers have an obligation under the ADA to “engage in a flexible, interactive process” with employees to identify potential accommodations that do not pose an undue hardship. Appearing to recognize a “herd immunity” concept, the EEOC suggests that the “prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of contact with others” is relevant to determining whether accommodating an unvaccinated employee poses an undue hardship.

Religious Objections. In addition to disability considerations, the EEOC’s guidance also confirms that employers must explore reasonable accommodations for employees who assert that a “sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination.” The EEOC cautions that employers “should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” However, employers may request supporting information if they have “an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance.”

Assuming that an employee’s religious objection to COVID-19 vaccination is sincerely held, the EEOC advises that Title VII requires employers to provide a reasonable accommodation unless doing so imposes an undue hardship. In demonstrating an undue hardship, an employer is required to show that an accommodation imposes “more than a de minimis cost or burden” on the employer.

Lack of Reasonable Accommodation. After engaging in an interactive process, employers may be unable to reasonably accommodate employees who cannot receive the COVID-19 vaccination for disability or religious reasons. If this occurs, the EEOC advises that the employer may lawfully exclude that employee from the workplace. The EEOC cautions, however, that an employer should not automatically terminate the employment relationship. Instead, employers must determine if any other rights are available to the employee under federal, state or local law.

Finally, the EEOC’s updated guidance confirms that employers will not violate the Genetic Information Nondiscrimination Act (GINA) by administering COVID-19 vaccinations to employees or requiring them to provide proof of a vaccination received from a third party. Acknowledging employer concerns that certain COVID-19 vaccinations rely on messenger RNA (mRNA) technology, the EEOC points to guidance from the Centers for Disease Control and Prevention (CDC) that mRNA vaccines “do not interact with our DNA in any way” and concludes that mandatory vaccinations do not implicate GINA’s prohibition on the use, acquisition or disclosure of genetic information.

Similar to its ADA guidance, however, the EEOC again cautions employers regarding the use of pre-vaccination medical screening inquiries. Specifically, the EEOC advises that any pre-vaccination questions from employers that involve family medical history or an employee’s genetic tests will implicate GINA’s prohibitions and should be avoided. For employers who wish to avoid these potential issues, the EEOC recommends that they simply require employees to submit proof of vaccination from a health provider instead of administering the vaccine themselves.

The EEOC’s updated guidance answers a number of critical questions regarding an employer’s ability to mandate COVID-19 vaccination for employees as a condition to returning to work. With this guidance, the EEOC sends a clear message that employers may require employees to receive COVID-19 vaccines without violating federal employment laws, provided employers fulfill their reasonable accommodation obligations to any employees who are unable to be vaccinated due to disability or religious reasons. Further, employers must tread carefully, however, regarding any pre-vaccination inquiries to employees to avoid violating the restrictions imposed by the ADA and GINA.

Additionally, if an employer will be paying for the COVID-19 vaccine or providing incentives to employees who obtain the vaccine, the employer should confirm that its COVID-19 vaccination program is designed and documented in compliance with applicable employee benefits requirements, such as those under the Employee Retirement Income Security Act (ERISA) and the Health Insurance Portability and Accountability Act (HIPAA).

In light of this updated guidance, employers should carefully consider their potential options for implementing and administering an effective COVID-19 vaccination program. Any program or policy should be reviewed with legal counsel prior to implementation to ensure that necessary procedures and employee protections are in place and to ensure that any program complies with all applicable laws.

Nancy M. Barnes 216.566.5578 <a href="mailto:Nancy.Barnes@ThompsonHine.com">Nancy.Barnes@ThompsonHine.com</a>

Deborah S. Brenneman 513.352.6638 937.443.6600 <a href="mailto:Debbie.Brenneman@ThompsonHine.com">Debbie.Brenneman@ThompsonHine.com</a>

Matthew R. Kissling 216.566.5586 <a href="mailto:Matthew.Kissling@ThompsonHine.com">Matthew.Kissling@ThompsonHine.com</a>

Kim Wilcoxon 513.352.6524 <a href="mailto:Kim.Wilcoxon@ThompsonHine.com">Kim.Wilcoxon@ThompsonHine.com</a>

M. Scott Young 513.352.6617 202.263.4134 <a href="mailto:Scott.Young@ThompsonHine.com">Scott.Young@ThompsonHine.com</a>

or any member of our <a href="https://www.thompsonhine.com/services/labor-amp-employment">Labor &amp; Employment</a> or <a href="https://www.thompsonhine.com/services/employee-benefits-amp-executive-compensation">Employee Benefits &amp; Executive Compensation</a> practice groups.

Additional Resources

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our <a href="https://www.thompsonhine.com/services/covid-19-task-force">COVID-19 Task Force</a> page for additional information and resources.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

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EEOC Issues Updated Guidance on Mandatory COVID-19 Vaccinations

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