On December 16, 2020, the EEOC released guidelines concerning Covid-19 vaccines in anticipation of their imminent availability. In general, the EEOC has advised that employers can require employees to receive a Covid-19 vaccine or provide proof of vaccination in order to return to or attend the workplace. In certain circumstances, an employer can bar an employee who refuses a Covid-19 vaccine from the workplace. The EEOC released answers to various questions regarding the workplace and Covid-19 vaccines, summarized below:

1. Is the administration of a Covid-19 vaccine by an employer to an employee a “medical examination” as defined by the ADA?

No. The administration of a Covid-19 vaccine does not constitute a “medical examination” under the ADA. The EEOC has previously clarified that 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.” The mere administration of a vaccine does not rise to the level of a “medical examination” as the employer is not seeking information about the employee’s current health status. As the administration of a vaccine by an employer is NOT a medical examination under the ADA, the employer need not show that the administration is job-related and consistent with business necessity.

2. Are pre-vaccine screening questions subject to the ADA standard for disability-related inquires?

Yes. If an employer requires that employees receive a Covid-19 vaccination administered by the employer, the employer must show that any pre-vaccine screening inquires are job-related and consistent with business necessity. To meet this standard, an employer must have a reasonable belief that an employee’s refusal to answer the questions (and in turn, refusal to receive the vaccine) will pose a direct threat to the health and safety of themself and others. There exist two situations in which the pre-vaccine inquires can be asked without meeting the above-mentioned standard:

1. If the vaccine is offered on a voluntary basis – this would make the participation in the pre-vaccination screening voluntary.
2. If the employer requires that the vaccine be administered by a third-party, such as a pharmacy.

3. Is requiring an employee to show proof of vaccination a disability-related inquiry?

No. Requesting proof of vaccination is unlikely to elicit information about a disability. Questions about WHY an employee did not receive a vaccine may elicit such information and as such would be subject to the ADA standard that the questions be “job-related and consistent with business necessity.” In order to avoid the latter category of questioning, employers should be clear that they seek only a yes or no answer as to vaccination status and do not seek any further medical information.

4. How should an employer respond to an employee who indicates they are unable to receive a vaccination due to a disability?

If a vaccination requirement screens out an employee with a disability, the employer must show that the unvaccinated employee poses 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 CFR 1630.2(R). The following factors are helpful in determining if 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.

If an employee cannot be vaccinated, they cannot be excluded from the workplace unless there is not way to provide a reasonable accommodation that would reduce or eliminate the risk (i.e., remote working). If the direct threat cannot be reduced, the employer can exclude the employee from the workplace. This does NOT mean that the employer can terminate the employee.

5. How should an employer respond to an employee who indicates they are unable to receive a vaccination due to religious practices or beliefs?

If an employee cannot be vaccinated due to a sincerely held religious belief, practice, or observance, the employer must provide reasonable accommodations unless it poses undue hardship (more than a de minimis cost) on the employer. If the employer has an objective basis for questioning the sincerity of the alleged belief, practice, or observation, the employer would be justified in requesting additional supporting information. If an accommodation (i.e., remote working) cannot be made, the employee can be excluded from the workplace. This does NOT mean that the employee can be terminated.

6. Covid-19 vaccines and GINA

Administering a Covid-19 vaccine to employees or requiring proof of vaccination does not implicate title II of GINA. Pre-vaccination screening questions may involve genetic information such as:

1. Information about an individual’s genetic tests;
2. Information about the genetic tests of a family member;
3. Information about the manifestation of disease or disorder in a family member (i.e., family medical history);
4. Information about requests for, or receipt of, genetic services or the participation in clinical research that includes genetic services by the an individual or a family member of the individual; and
5. Genetic information about a fetus carried by an individual or family member or of an embryo legally held by an individual or family member using assisted reproductive technology.

If the pre-vaccination screening does not illicit any genetic information, then the screening does not implicate title II of GINA. To avoid such an issue, employers can request proof of vaccination by a third-party. When making such a request, employers should clearly indicate that they are not seeking any genetic information as part of the response. If you have any questions about this article, please contact Sean Mackin (smackin@setlifflaw.com) at 804-377-1272 or Steve Setliff (ssetliff@setlifflaw.com) at 804-377-1261.