Many employers are mandating that employees get COVID vaccines, for good reason. COVID is a deadly disease that has killed hundreds of thousands of Americans and shut down many businesses. Employers want to get back to work.
On the flip side, employers who do not mandate vaccines face
some potential liability for not maintaining a safe workplace. That would
include both OSHA violations and potential liability to non-employees who are
exposed due to the employer’s negligence, such as customers and family members
of employees.
K. Vaccinations
The availability of COVID-19 vaccinations may raise
questions about the applicablilty of various equal employment opportunity (EEO)
laws, including the ADA and the Rehabilitation Act, GINA, and Title VII, including
the Pregnancy Discrimination Act (see Section
J, EEO rights relating to pregnancy). The EEO laws do not interfere
with or prevent employers from following CDC or other federal, state, and local
public health authorities’ guidelines and suggestions.
ADA and Vaccinations
K.1. For any COVID-19 vaccine that has been approved or
authorized by the Food and Drug Administration (FDA), is the administration of
a COVID-19 vaccine to an employee by an employer (or by a third party with whom
the employer contracts to administer a vaccine) a “medical examination” for
purposes of the ADA? (12/16/20)
No. The vaccination itself is not a medical
examination. As the Commission explained in guidance
on disability-related inquiries and medical examinations, a medical
examination is “a procedure or test usually given by a health care professional
or in a medical setting that seeks information about an individual’s physical
or mental impairments or health.” Examples include “vision tests; blood,
urine, and breath analyses; blood pressure screening and cholesterol testing;
and diagnostic procedures, such as x-rays, CAT scans, and MRIs.” 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, therefore, it is not a
medical examination.
Although the administration of a vaccination is not a
medical examination, pre-screening vaccination questions may implicate the ADA’s
provision on disability-related inquiries, which are inquiries likely to elicit
information about a disability. If the employer administers the vaccine,
it must show that such pre-screening questions it asks employees are
“job-related and consistent with business necessity.” See
Question K.2.
K.2. According to the CDC, health care providers should
ask certain questions before administering a vaccine to ensure that there is no
medical reason that would prevent the person from receiving the vaccination. If
the employer requires an employee to receive the vaccination from the employer
(or a third party with whom the employer contracts to administer a vaccine) and
asks these screening questions, are these questions subject to the ADA
standards for disability-related inquiries? (12/16/20)
Yes. Pre-vaccination medical screening questions are
likely to elicit information about a disability. This means that such
questions, if asked by the employer or a contractor on the employer’s behalf,
are “disability-related” under the ADA. Thus, if the employer requires an
employee to receive the vaccination, administered by the employer, the employer
must show that these disability-related screening inquiries are “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, therefore, does not
receive a vaccination, will pose a direct threat to the health or safety of her
or himself or others. See
Question K.5. below for a discussion of direct threat.
By contrast, there are two circumstances in which
disability-related screening questions can be asked without needing to satisfy
the “job-related and consistent with business necessity” requirement.
First, if an employer has offered a vaccination to employees on a voluntary
basis (i.e. employees choose whether to be vaccinated), the ADA requires that
the employee’s decision to answer pre-screening, disability-related questions
also must be voluntary. 42
U.S.C. 12112(d)(4)(B); 29
C.F.R. 1630.14(d). If an employee chooses not to answer these
questions, the employer may decline to administer the vaccine but may not
retaliate against, intimidate, or threaten the employee for refusing to answer
any questions. Second, 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.
The ADA requires employers to keep any employee medical
information obtained in the course of the vaccination program confidential.
K.3. Is asking or requiring an employee to show proof of
receipt of a COVID-19 vaccination a disability-related inquiry? (12/16/20)
No. There are many reasons that may explain why an
employee has not been vaccinated, which may or may not be
disability-related. Simply requesting proof of receipt of a COVID-19
vaccination is not likely to elicit information about a disability and,
therefore, is not a disability-related inquiry. However, subsequent
employer questions, such as asking why an individual did not receive a
vaccination, may elicit information about a disability and would be subject to
the pertinent ADA standard that they 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 may want to warn the employee not to provide
any medical information as part of the proof in order to avoid implicating the
ADA.
ADA and Title VII Issues Regarding Mandatory
Vaccinations
K.4. Where can employers learn more about Emergency Use
Authorizations (EUA) of COVID-19 vaccines? (12/16/20)
Some COVID-19 vaccines may only be available to the public
for the foreseeable future under EUA granted by the FDA, which is different
than approval under FDA vaccine licensure. The FDA
has an obligation to:
[E]nsure that recipients of the vaccine under an EUA are
informed, to the extent practicable under the applicable circumstances, that
FDA has authorized the emergency use of the vaccine, of the known and potential
benefits and risks, the extent to which such benefits and risks are unknown,
that they have the option to accept or refuse the vaccine, and of any available
alternatives to the product.
The FDA says that this information is typically conveyed in
a patient fact sheet that is provided at the time of the vaccine administration
and that it posts the fact sheets on its website. More information about
EUA vaccines is available on the FDA’s
EUA page.
K.5. If an employer requires vaccinations when they are
available, how should it respond to an employee who indicates that he or she is
unable to receive a COVID-19 vaccination because of a disability? (12/16/20)
The ADA allows an employer to 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.”
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 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.” 29
C.F.R. 1630.2(r). Employers should conduct an individualized
assessment of four factors in determining whether a direct threat exists: the
duration of the risk; the nature and severity of the potential harm; the
likelihood that the potential harm will occur; and the imminence of the
potential harm. A conclusion 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 due to 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.
If there is a direct threat that cannot be reduced to an
acceptable level, the employer can exclude the employee from
physically entering the workplace, but this does not mean the employer may
automatically terminate the worker. Employers will need to determine if
any other rights apply under the EEO laws or other federal, state, and local
authorities. For example, if an employer excludes an employee based on an
inability to accommodate a request to be exempt from a vaccination requirement,
the employee may be entitled to accommodations such as performing the current
position remotely. This is the same step that employers take when physically
excluding employees from a worksite due to a current COVID-19 diagnosis or
symptoms; some workers may be entitled to telework or, if not, may be eligible
to take leave under the Families First Coronavirus Response Act, under the
FMLA, or under the employer’s policies. See also Section
J, EEO rights relating to pregnancy.
Managers and supervisors responsible for communicating with
employees about compliance with the employer’s vaccination requirement should
know how to recognize an accommodation request from an employee with a
disability and know to whom the request should be referred for consideration.
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 prevalence in the workplace of employees who already have
received a COVID-19 vaccination and the amount of contact with others, whose
vaccination status could be unknown, may impact the undue hardship
consideration. In discussing accommodation requests, employers and
employees also may find it helpful to consult the Job Accommodation Network (JAN)
website as a resource for different types of accommodations, www.askjan.org. JAN’s materials
specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.
Employers may rely on CDC recommendations when deciding
whether an effective accommodation that would not pose an undue hardship is
available, but as explained further in Question K.7., there may be situations where an
accommodation is not possible. When an employer makes this decision, the
facts about particular job duties and workplaces may be relevant. Employers
also should consult applicable Occupational Safety and Health Administration
standards and guidance. Employers can find OSHA COVID-specific resources
at: www.osha.gov/SLTC/covid-19/.
Managers and supervisors are reminded that it is unlawful to
disclose that an employee is receiving a reasonable accommodation or retaliate
against an employee for requesting an accommodation.
K.6. If an employer requires vaccinations when they are
available, how should it respond to an employee who indicates that he or she is
unable to receive a COVID-19 vaccination because of a sincerely held religious
practice or belief? (12/16/20)
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 of the Civil Rights Act. Courts have defined
“undue hardship” under Title
VII as having more than a de minimis cost or burden
on the employer. EEOC guidance explains that because the definition of religion
is broad and protects beliefs, practices, and observances with which the
employer may be unfamiliar, the employer should ordinarily assume that an
employee’s request for religious accommodation is based on a sincerely held
religious belief. If, however, an employee requests a religious
accommodation, and an employer has an objective basis for questioning either
the religious nature or the sincerity of a particular belief, practice, or
observance, the employer would be justified in requesting additional supporting
information.
K.7. What happens if an employer cannot exempt or provide
a reasonable accommodation to an employee who cannot comply with a mandatory
vaccine policy because of a disability or sincerely held religious practice or
belief? (12/16/20)
If an employee cannot get vaccinated for COVID-19 because of
a disability or sincerely held religious belief, practice, or observance, and
there is no reasonable accommodation possible, then it would be lawful for the
employer to exclude the
employee from the workplace. This does not mean the employer may
automatically terminate the worker. Employers will need to determine if
any other rights apply under the EEO laws or other federal, state, and local
authorities.
Title II of the Genetic Information Nondiscrimination
Act (GINA) and Vaccinations
K.8. Is Title II of GINA implicated when an employer
administers a COVID-19 vaccine to employees or requires employees to provide
proof that they have received a COVID-19 vaccination? (12/16/20)
No. 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, which will be discussed
more below. As noted in Question K.9. however, if administration of the
vaccine requires pre-screening questions that ask about genetic information,
the inquiries seeking genetic information, such as family members’ medical
histories, may violate GINA.
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.
Certain COVID-19 vaccines use mRNA technology. This raises
questions about genetics and, specifically, about whether such vaccines modify
a recipient’s genetic makeup and, therefore, whether requiring an employee to
get the vaccine as a condition of employment is an unlawful use of genetic
information. 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.” (See https://www.cdc.gov/coronavirus/2019-ncov/vaccines/different-vaccines/mrna.html for
a detailed discussion about how mRNA vaccines work). Thus, 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.
K.9. Does asking an employee the pre-vaccination
screening questions before administering a COVID-19 vaccine implicate Title II
of GINA? (12/16/20)
Pre-vaccination medical screening questions are likely to
elicit information about disability, as discussed in Question
K.2., and may elicit information about genetic information, such as
questions regarding the immune systems of family members. It is not yet
clear what screening checklists for contraindications will be provided with
COVID-19 vaccinations.
GINA defines “genetic information” to mean:
