EEOC weighs out COVID-19 vaccine | Orrick – Labor Law and Litigation

As the first doses of the first approved COVID-19 vaccines will be given in the US, the EEOC has issued its first guidelines on vaccination as part of its What You Should Know About COVID-19 and ADA, the Rehabilitation Act. and other EEO laws ”.

The EEOC’s latest FAQ guidelines discuss a number of questions that employers need to consider when considering the need for the vaccine. Some of the key issues the EEOC has spoken on are:

  • Vaccination or pre-vaccination questions as a “medical examination” under the Americans With Disabilities Act (“ADA”): The EEOC made it clear that the requirement for a vaccine is not a “medical examination” as that term is used in the ADA even if it is administered by the employer. However, the pre-screening questions that are likely to be asked of an employee wishing to receive the vaccine are considered disability-related inquiries that must be job-related and reflect business need. If the employer either asks the workers’ questions directly or enters into a contract with a third party to ask those questions and administer the vaccine, the employer must demonstrate that the questions are required to deliver the vaccine and that the vaccine is required, to ensure that the employee does not pose a direct threat to the health and safety of himself or others. The EEOC notes that when the vaccine is provided by the employer to workers on a voluntary basis or when the employer requires the vaccine but employees receive it at a pharmacy or other third party not under contract with the employer, the requirement of stating that pre-vaccination questions are job-related and correspond to business need does not apply.
  • Vaccination certificate required: The EEOC advises employers that they can request proof that workers have received a COVID-19 vaccine. In the FAQs, it is recommended that employers advise workers not to provide additional medical information with this evidence.
  • Responding to disability inquiries: The EEOC describes a multi-step process by which employers can think about the interplay between requesting a vaccine and adapting to a disability
    • First, the EEOC begins with the premise that the ADA allows employers to set a standard that “includes the requirement that an individual does not pose a direct threat to the health or safety of anyone in the workplace”. However, if this standard (e.g. compulsory vaccination) were to weed out a person with a disability, the employer must demonstrate that an unvaccinated worker poses a direct threat as there is a significant risk of significant damage to the health or safety of the person or others that cannot be eliminated or reduced through reasonable precautions. ‘“
    • Second, in order to determine whether there is a direct threat, employers should make a case-by-case assessment of (i) the duration of the risk, (ii) the nature and severity of the potential harm, (iii) the likelihood of the potential harm being harmed occur and (iv) the imminent danger.
    • Third, if an employer concludes that an employee who cannot receive a vaccine is a direct threat at work, the employer must determine what reasonable steps, if any, can be taken to reduce that direct threat.
    • If there are no reasonable arrangements that can reduce the direct threat, the employer can exclude the person from the job, but not automatically terminate the employment relationship. The employer still has to consider what other accommodations can be made available so that the employee can continue his work, even if he is excluded from the workplace due to the direct threat analysis.
  • Answering religious requests for accommodation: Employers must provide accommodation to an employee for any sincere religious belief, practice, or observance, including those that the employer may not be familiar with. The EEOC cautioned employers not to generally assume that the request for religious accommodation is based on genuine religious belief, unless the employer has an “objective basis” to question the religious nature or the sincerity of the belief put. The EEOC does not provide clear examples of what it would consider to be such an “objective basis”. If an employer is unable to provide religious accommodation from the vaccine requirement, the EEOC warns that the employer cannot automatically terminate the worker, even if it is legally permissible to exclude the unvaccinated worker from the job site.

The EEOC notes that EEO laws “do not prevent or prevent employers from following the guidelines and suggestions of the CDC or other federal, state and local health authorities”. No doubt these authorities will provide additional guidance as more COVID-19 vaccines are approved and distributed. We will continue to monitor developments on these topics and report on them here. Stay tuned.

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