Traps on Mandatory Vaccination Rules in the Workplace

In the coming weeks and months, COVID-19 vaccines will be distributed around the United States. Employers will have questions about vaccination procedures, such as whether they may require employees to be vaccinated, what they may ask about employees’ vaccination records, and whether they must accommodate employees with religious opposition to being vaccinated. Recently, the EEOC updated its guidance, What You Should Know About COVD-19 and the ADA Rehabilitation Act, and Other EEO Laws, to address these vaccination concerns. This alert addresses the essential points of the EEOC’s guidance.

The American with Disabilities Act (ADA) and Vaccination

• The ADA permits an employer to administer a COVID-19 vaccine to its employees who approve —either directly or through a third-party vendor. An employer does not perform a “medical examination,” which is prohibited by the ADA, by administering a vaccine to an employee. A medical examination is a procedure or test that seeks information about a person’s physical or mental condition, including vision tests; blood, urine, and breath analyses; and other diagnostic procedures, like an x-ray. But administering a vaccine to any employee does not require the employer to seek information about the employee’s health. Therefore, the simple administration of a vaccine is not a medical examination.
• Likewise, an employer may ask an employee whether they have received a COVID-19 vaccine. Employers, however, should be cautious. Follow-up questions about why employees did not receive a vaccination may elicit disability-related information, which is subject to the ADA’s coverage. Therefore, if an employer asks for proof of COVID-19 vaccination, it should also warn employees not to provide medical information as part of the proof.
• Asking pre-screening questions before administering a vaccine will trigger the ADA’s standards for disability-related inquiries, and an employer must show that any disability-related inquiries are “job-related and consistent with business” necessity. This requires an employer excluding an employee from the workplace to determine that an employee who does not answer these questions, and thus does not receive a vaccination, will pose a direct health risk to themselves and others. There are two situations in which an employer may ask disability-related screening questions without needing to satisfy the “job-related and consistent with business” necessity. First, if an employer offers a COVID-19 vaccine voluntarily, then the employee’s decision to answer the pre-screening questions also must be voluntary. Although an employer may decline to administer the vaccine if the employee chooses not to answer a question, the employer may not retaliate against the employee for not answering the question. Second, the restriction on disability-related inquires does not apply to pre-vaccination screening questions if the employer does not require the employee to use a specific provider to receive the vaccine.Based on the EEOC’s guidance, an employer who wants to require its employees to be vaccinated should have its employees vaccinated through a third party of an employee’s choice, such as a pharmacy, and reimburse the employee for the vaccination costs.
• Some employees may try to avoid a mandatory vaccination based on a claimed disability. As is typical with most vaccines, there have been reports of some recipients of the first FDA-approved COVID-19 vaccine suffering adverse reactions. Some employees may claim they cannot take a COVID-19 vaccine based on past adverse reactions to other vaccines. The ADA allows employers to require that individuals don’t threaten the health and safety of other employees. But if a safety-based ruled prevents a disabled individual from working, the employer must show that the unvaccinated employee threatens the health and safety of others in a way that cannot be accommodated. This reasonable accommodation analysis should be conducted on a case-by-case basis. Employers and employees should engage in a flexible and interactive process to identify workplace accommodations that don’t create an undue hardship on either side.
• If the employer cannot provide a reasonable accommodation at the workplace, the employer may need to provide a reasonable accommodation through remote work. After 2020, it is difficult for most employers to argue that they cannot accommodate remote workers.
• If an employer excludes an employee from the workplace because the employee can’t take a COVID-19 vaccine and the employee is unable to telework, that employee may be eligible to take leave under the Families First Coronavirus Response Act (FFCRA) under the Family Medical Leave Act. More information about whether an employee is eligible for FFRCA can be found here.

Vaccination and Title VII

• An employer should tread carefully if it knows that an employee has a sincerely held religious belief that would prevent him or her from receiving any vaccination. Under Title VII, once an employer learns of an employee’s sincerely held religious belief, the employer must provide a reasonable accommodation for this belief unless it would pose an undue hardship. An undue hardship under Title VII requires more than a de minimis cost or burden on the employer. EEOC guidance defines religion broadly and protects beliefs, practices, and observances—even those that are unfamiliar to a layman. As such, if an employee requests a religious accommodation based on an inability to take a COVID-19 vaccine, the employer should typically follow the procedures described above and provide such an accommodation. But under the EEOC guidance, an employer may ask for more supporting information regarding the religious accommodation if “the employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance.” 

Title II of the Genetic Information Nondiscrimination Act (GINA) and Vaccinations

• Under GINA, protected “genetic information” includes information about an individual’s genetic tests, information about the genetic tests of family members, and participation in clinical research concerning genetic services. An employer does not violate GINA simply by asking whether an employee has been vaccinated. The exception to that rule, however, is asking a pre-screening question regarding the employee’s genetic information, such as family medical history.
• The Pfizer-BioNTech and Moderna COVID-19 vaccines use novel mRNA technology. This has raised questions for some about whether this new technology modifies a person’s genetic makeup—thus implicating GINA. The EEOC’s guidance states that it does not. The CDC has explained that the mRNA COVID-19 vaccines do not interact with people’s DNA in any way and therefore, GINA is not implicated.
• GINA does not bar an employee’s own health care provider from asking questions about genetic information; it does, however, bar an employer or doctor working for the employer from asking such questions. If an employer requires employees to provide proof of COVID-19 vaccination, the employer should warn employees not to provide genetic information along with the proof. 

What Employers Should Know

The COVID-19 vaccines that have recently reached the market provide a light at the end of the tunnel for many employers—hope that society can return to pre-pandemic times. Although employers may want their employees vaccinated to allow a return to normalcy, strict rules must be followed to preserve employees’ rights. The EEOC has provided guidance regarding vaccination requirements’ interaction with various federal laws. To be on sound legal footing, and avoid challenges under the ADA, employers who want their employees to be vaccinated would be best to do so through their local health care providers (when such vaccinations are widely available) and reimburse for the vaccination costs. Employers must also be mindful that they must provide a reasonable alternative if an employee cannot take the vaccine because of a disability or religious belief, such as allowing the employee to work from home. Finally, employers must not pry into an employee’s genetic history when inquiring about their vaccination status.

If you would like more information on any of these topics, please feel free to consult an attorney at Payne & Fears.