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Employers, Take Note: EEOC Releases COVID-19 Vaccine Guidance

Throughout the course of 2020, employers have had to stay abreast of a myriad of COVID-19 regulations in the workplace. This includes understanding the ways that CDC guidelines, local and federal regulations, and public health recommendations intersect with the Americans with Disabilities Act (‘ADA’), Title VII of the Civil Rights Act, the Genetic Information Nondiscrimination Act (‘GINA’), and more. In addition to the existing recommendations, the EEOC has released guidance for employers to stay compliant when managing the distribution of the newly approved coronavirus vaccines in the workplace.

The first piece of guidance the EEOC offers is that employers must try to make reasonable accommodations for employees who cannot get vaccinated due to disability or sincerely held religious beliefs. However, if there are no reasonable accommodations possible for the employee—which might be the case if the employer is requiring the vaccine for the safety of the workplace as a whole—the  employer may be able to lawfully exclude the employee from being in the workplace. This does not mean that the employer may automatically terminate the employee, but they should explore options that keep everyone in the workplace safe while abiding by compliance regulations.

Person receiving vaccineIt is important for employers to note the connection between requiring employees to receive the COVID-19 vaccine and the ADA’s provisions on medical examinations and disability-related questioning. While administration of the vaccine itself is not considered a medical examination, employers should still be aware of the implications of pre-vaccine screening. Questions asked as part of the screening will likely provoke responses from employees about any disabilities and therefore may be categorized as disability-related inquiries. This means questions should be carefully constructed and employers should ensure that they are both “consistent with business necessity” and “job-related.” This applies in scenarios when an employer-hired third party is administering the vaccine and pursuing the line of inquiry.

A similar set of regulations applies to GINA considerations. The use of mRNA in the vaccination has sparked concerns about GINA, but requiring employees to receive the vaccination is unrelated to GINA’s restrictions on acquiring and disclosing genetic information. However, if questioning included in vaccination screening requires the employee to disclose genetic information, including family medical history, the GINA provisions would be implicated.

Two exceptions to this rule may apply, however. The first is if employers do not require employees to get the vaccination but allow them to do so on a voluntary basis. Voluntarily receiving the vaccination suggests employees will voluntarily answer any screening questions; if they choose not to answer the screening questions, they may not be able to receive the vaccine. If this occurs, the employer may not retaliate in any way. The second exception is if the required vaccine comes from the employee’s health care provider or another source that does not have a contract or agreement with their place of employment.

Doctor holding vaccine vialIf employers require employees to get the vaccine, and thus require a receipt or documentation as proof, they should warn their employees to ensure the receipt doesn’t include other medical information, particularly about disability status or genetics. Inquiry into why an employee did not get the vaccination should be carefully considered as well, as this line of questioning could elicit responses about disability status and fail to meet ADA requirements.

If an employee refuses to get the vaccine mandated by their employer, the employer should consider the ADA’s allowance that one individual should not pose a threat to the safety of other individuals in the workplace – thus, if someone with a disability is excluded from the workplace because their disability status prevents them from receiving the vaccination, the employer must be able to prove that the employee would be a direct threat to the safety of others. Direct threats are defined by duration, severity, likelihood of others being harmed, and imminence of the threat.

Much like the other regulations for employers during the pandemic, guidance on vaccine distribution is anything but simple. To read more about COVID-19 and other EEO laws, visit our blog, or contact your McBrayer attorney today.

Cindy EffingerCynthia L. Effinger, Member with McBrayer, is located in the firm’s Louisville office. Ms. Effinger’s practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger can be reached at ceffinger@mcbrayerfirm.com or (502) 327-5400, ext. 2316.

Services may be performed by others. This article does not constitute legal advice.

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