According to recently published EEOC Guidance (summarized below), the availability of COVID-19 vaccinations raises employment law questions under the ADA, GINA, and Title VII. These laws do not prohibit employers from requiring their employees to get the COVID-19 vaccine or even administering the vaccine to their employees themselves, except under certain circumstances. Pre-vaccination medical screening of employees, however, raises a whole host of employment law concerns, of which employers should familiarize themselves.
The Americans with Disabilities Act
The administration of a COVID-19 vaccine to an employee by an employer is not a medical examination under the ADA. A medical examination is a procedure or test given by a health care professional that seeks information about an individual’s physical or mental impairments or health. If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and it is not an unlawful medical examination.
However, pre-screening vaccination questions may violate the ADA’s prohibition of disability-related inquiries because they are likely to elicit information about a disability and thus disability-related. Any pre-screening questions that employers ask employees must be job-related and consistent with business necessity. An employer must have a reasonable belief that an employee who does not answer the questions (and consequently does not receive a vaccination) will pose a direct threat to the health or safety of her or himself or others.
There are two circumstances in which disability-related screening questions may be asked without satisfying the job-related and consistent with business necessity requirement. If an employer has offered a vaccination to employees on a voluntary basis, the employee’s decision to answer pre-screening, disability-related questions is also voluntary. If the employee chooses not to answer these questions, the employer may decline to administer the vaccine. In addition, if an employee receives an employer-required vaccination from a third-party (that does not have a contract with the employer), such as a pharmacy or other health care provider, the ADA job-related and consistent with business necessity restrictions on disability-related inquiries would not apply to the pre-vaccination medical screening questions.
Requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry because it is not likely to elicit information about a disability. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and must be job-related and consistent with business necessity. If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer should warn the employee not to provide any medical information as part of the proof.
The ADA allows an employer to require that an individual shall not pose a direct threat to the health or safety of individuals in the workplace. However, if a safety-based qualification standard, such as a vaccination requirement, screens out or tends to screen out an individual with a disability, the employer must show that an unvaccinated employee would pose a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated by reasonable accommodation. A direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite. If an individual who cannot be vaccinated due to disability poses a direct threat at the worksite, the employer may exclude the employee from the workplace, provided, however, that there is no reasonable accommodation that would eliminate the risk. In this case, the accommodation of working remotely would also have to considered by the employer.
Title VII of the Civil Rights Act of 1964
If 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.
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, the employer may exclude the employee from the workplace.
Genetic Information Nondiscrimination Act
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, or (3) disclose genetic information.
Requiring employees to get the vaccine, administering a COVID-19 vaccination to employees, or requiring them to provide proof that they have received a COVID-19 vaccination does not violate GINA. These do not involve the use of genetic information to make employment decisions, or the acquisition or disclosure of genetic information.
However, if administration of the vaccine requires pre-vaccination screening questions that ask about genetic information, the inquiries may violate GINA since they may elicit genetic information. Unless all questions about genetic information are excluded, employers who want to ensure that employees have been vaccinated should request proof of vaccination instead of administering the vaccine themselves. If an employer requires employees to provide proof that they have received a COVID-19 vaccination from their own health care provider, the employer should warn the employee not to provide any genetic information as part of the proof.