Today, December 16, 2020, the Equal Employment Opportunity Commission (“EEOC”) released updated guidance related to the COVID-19 pandemic, specifically addressing vaccine issues. As we previously advised, the EEOC was expected to release guidance on vaccine mandates before the 2021 inauguration and it has now done so. This guidance is crucial as the Pfizer vaccine was approved for emergency use by the U.S. Food and Drug Administration (“FDA”) this past weekend and is now being administered throughout the United States including our region, and additional vaccines are on the horizon. Below is breakdown of the key guidance pertaining to the COVID-19 vaccine.

COVID-19 INQUIRIES AND THE ADA

The EEOC guidance is clear that administering a COVID-19 vaccine is not a medical examination because an employer administrating a COVID-19 vaccine to an employee is not seeking information about an individual’s current health status. But the CDC has noted that health care providers should ask certain questions before administering a vaccine to ensure that there is no medical reason preventing the person from receiving the vaccine. While administration of the vaccine is not a medical examination, the EEOC states that such pre-screening vaccination inquiries may implicate the ADA’s provision on disability-related inquiries.

If an employer administers the vaccine, it must show that such pre-screening inquiry is “job-related and consistent with business necessity.” To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions, and does not receive the vaccination, will pose a direct threat to the health and safety of that employee and others. However, there are two situations in which disability-related screenings can be asked without the need to meet this standard.

The first is if the employer offers the vaccination to employees on a voluntary basis, the ADA requires that the employee’s decision to answer pre-screen disability-related vaccination inquires also be voluntary. But if an employee chooses not to answer this questions, the employer may decline to administer the vaccine. The employer cannot, however, retaliate against, intimidate, or threaten the employee for refusing to answer the questions. The second situation arises when an employee receives an employer-required vaccination from a third-party that does not have a contract with the employer, such as a pharmacy. In that situation, the ADA job-related business necessity requirement does not apply to the pre-vaccination inquiry.

As with COVID-19 testing, the ADA requires that employers keep any medical information obtained through a vaccination program confidential.

WORKPLACE MANDATES OF A COVID-19 VACCINE AND ACCOMMODATION

Under the ADA, an employer may have a qualification standard that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” If a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, an 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.” Employers should conduct an individualized assessment of four factors in determining whether a direct threat exists: (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.

Concluding that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an employer determines that an individual who cannot be vaccinated because of a disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace—or take any other action—unless there is no way to provide a reasonable accommodation (absent undue hardship) that would eliminate or reduce this risk so the unvaccinated employee does not pose a direct threat. However, if the direct threat cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace.

This does not mean that an employer may automatically terminate the employee. A reasonable accommodation could be allowing an employee to work remotely, if possible, which has become common during the pandemic. Thus, if remote work remains an option, then it could be a reasonable accommodation if an employee cannot be vaccinated because of a disability. Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). This process should include determining whether it is necessary to obtain supporting documentation about the employee’s disability and considering the possible options for accommodation given the nature of the workforce and the employee’s position.

The EEOC also noted that employers may rely on CDC recommendations in deciding whether an effective accommodation exist that would not pose an undue hardship. When an employer makes this decision, the facts about particular job duties and workplaces may be relevant.

Similarly, if an employee cannot get vaccinated for COVID-19 because of a sincerely held religious belief, practice, or observance, and there is no reasonable accommodation possible, an employer may exclude the employee from the workplace. Again, this does not mean the employer may automatically terminate the worker. Once an employer is on notice that an employee’s sincerely held religious belief, practice, or observance prevents the employee from receiving the vaccination, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII. Courts have defined “undue hardship” under Title VII as having more than a de minimis cost or burden, which is a lower standard than an undue burden defense under the ADA, on the employer. The definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Employers should thus ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.

GENETIC INFORMATION AND A COVID-19 VACCINE

Administering a COVID-19 vaccination to employees or requiring employees to provide proof that they have received a COVID-19 vaccination does not implicate Title II of GINA because it does not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of “genetic information” as defined by the statute. This includes vaccinations that use messenger RNA (mRNA) technology, such as the Pfizer vaccine.

Under Title II of GINA, employers may not (1) use genetic information to make decisions related to the terms, conditions, and privileges of employment, (2) acquire genetic information except in six narrow circumstances, or (3) disclose genetic information except in six narrow circumstances. The CDC has explained that the mRNA COVID-19 vaccines “do not interact with our DNA in any way” and “mRNA never enters the nucleus of the cell, which is where our DNA (genetic material) is kept.” Consequently, requiring employees to get the vaccine, whether it uses mRNA technology or not, does not violate GINA’s prohibitions on using, acquiring, or disclosing genetic information.

With positive traction for more emergency approvals of COVID-19 vaccines by the FDA, there is hope that daily life may return to normal sooner than expected. Employers should begin weighing the benefits of mandating such a vaccine, and determining how to implement a vaccination program even if the employer will not mandate the vaccine. Kemp Smith’s Labor and Employment Department is here to help guide and assist employers with implementing vaccination programs. Please feel free to contact Kemp Smith’s Labor and Employment Department at 915-533-4424, if you need guidance and assistance on preparing and implementing a vaccination program in your workplace.