Thursday, December 17, 2020

Everybody panic! The EEOC just released its entirely unremarkable COVID vaccine guidance.

The long-awaited EEOC guidance on COVID-19 vaccines is here. Can employers require employees to get the brand new COVID-19 vaccine? Yes, but.... (you knew there was going to be a "but" right?).

Disability-Related Inquiries

If an employer administers the vaccine to its employees (or contracts with a third party to do it), then there's a small problem. The screening questions include disability-related inquiries. Employers (or their contractors) can only request such information if the questions 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." We'll address that "direct threat" analysis below.

Two ways to avoid this issue altogether:

1. Make the screening questions (and therefore the vaccine) voluntary; or

2. Require the employee to show proof of vaccination from a third party that does not have a contract with the employer to administer the vaccine (like a pharmacy or health care provider).

Reasonable Accommodations and Direct Threat Analysis

Surely you saw this issue coming? Individuals with a disability or sincerely held religious belief that precludes them from getting vaccinated may be entitled to an accommodation. The ADA provides an exception if the employee with a disability (and therefore without a vaccine) would pose a direct threat to the health or safety of others, which cannot be eliminated or reduced by a reasonable accommodation. 

What's a "direct threat?" The EEOC identifies four factors:

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.

"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." By contrast, Title VII provides an exception for an employee with a religious objection if the accommodation imposes more than a "de minimis" cost or burden. 

If no accommodation is possible without posing a direct threat (disability) or more than de minimis cost (religion), then the employer may exclude the employee from the workplace. But, the EEOC notes, "This does not mean the employer may automatically terminate the worker." The guidance points to other EEO laws and rights - perhaps a hint at telework as an accommodation? Or, perhaps just a reminder that employers have obligations outside of the ADA and Title VII. 

Genetic Information Nondiscrimination Act (GINA)

Finally, it is not clear if the screening questions will include requests for genetic information covered by GINA. Juts one more thing to worry about for employers who administer the vaccines themselves (or through a contractor). 

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