The Gift that Keeps on Giving
Rather than surprise us with a Japanese luxury automobile for the holidays, the EEOC gave us the gift of new COVID guidance!! The guidance, which was released on December 16th, dives into the legal implications of employer-mandated COVID vaccinations. It states that employers may require COVID-19 vaccinations, but should be aware of certain employee protections.
Americans with Disabilities Act (ADA)
Under the ADA, employees may turn down the vaccine due to a disability.
If this occurs:
- Employers cannot prevent the employee from entering the workplace, unless reasonable accommodations cannot be made to avoid direct threat to others.
- If a direct threat cannot be avoided, and the employee is prevented from entering the workplace, the employer may not automatically terminate the employee, as they will likely be entitled to accommodations such as remote work.
Certain pre-screening vaccination questions may breach the ADA’s disability-related inquiry provision. If an employer is administering the vaccine, they must demonstrate that such questions are “job-related and consistent with business necessity.”
- Employers are not subject to this requirement if they allow employees to get the vaccine through a third party such as a pharmacy or healthcare provider.
- Employers should warn employees not to divulge any medical information when providing proof of vaccination.
Title VII of the Civil Rights Act
If an employee notifies an employer that they cannot receive the vaccination due to their religious beliefs, the employer must provide a reasonable accommodation unless it would pose an undue hardship under Title VII.
- EEOC’s guidance cautions that the definition of religion is broad, so it may be best for employers to assume that the religious belief is sincere.
- However, employers may request supporting information for religious accommodations (just be careful not to wind up in Queens with an aluminum pole and an airing of grievances.)
Genetic Information Nondiscrimination Act (GINA)
GINA prevents employers from acquiring genetic information from their employees; information which includes family medical history.
- It is possible that COVID vaccine pre-screening questions include inquiries into family medical history.
- Similar to the ADA, employers can avoid breaching GINA provisions by allowing employees to receive their vaccination through a third party.
StraightforWARD Legal Advice:
In order to avoid litigation, employers requiring COVID-19 vaccinations should consider allowing their employees to have the vaccine administered by a third party. If going this route, employers should warn employees not to divulge medical information when providing proof of vaccination.
Whatever path employers choose, they should remain flexible, receptive to concerns, and ensure that there are open paths of communication.