On December 16, 2020, EEOC expanded its COVID-19 guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, to respond to employer questions about the use of the new COVID-19 vaccine.
The guidance focuses on how employers who wish to mandate the COVID-19 vaccine can avoid liability under the Americans with Disabilities Act, Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination Act (GINA).
Employers must provide a reasonable accommodation under the ADA for those whose disabilities prevent them from taking the vaccine, such as seeking an alternative, perhaps remote role. If the employer cannot accommodate these employees, the employer can remove the employees from the workplace if it can show the unvaccinated employees would pose a “direct threat” to the workplace, but should not automatically terminate them. Rather, the employer should exhaust all leave and other options available to the employees. The employer likewise must provide reasonable accommodation to those whose sincerely-held religious beliefs do not allow them to take the vaccine. If the religious accommodation would be an undue hardship, again, the employer may ban the employee from the workplace but, again, may not automatically terminate them without exhausting other available options.
While taking the vaccine will not be considered a medical examination under the ADA, EEOC cautions employers that the vaccine pre-screening questions asked by the employer must be “job-related and consistent with business necessity.” The agency also cautions employers to avoid asking questions about employees’ genetic information either as part of the prescreening questions or in the certification of vaccination.
The guidance focuses on how employers who wish to mandate the COVID-19 vaccine can avoid liability under the Americans with Disabilities Act, Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination Act (GINA).
Employers must provide a reasonable accommodation under the ADA for those whose disabilities prevent them from taking the vaccine, such as seeking an alternative, perhaps remote role. If the employer cannot accommodate these employees, the employer can remove the employees from the workplace if it can show the unvaccinated employees would pose a “direct threat” to the workplace, but should not automatically terminate them. Rather, the employer should exhaust all leave and other options available to the employees. The employer likewise must provide reasonable accommodation to those whose sincerely-held religious beliefs do not allow them to take the vaccine. If the religious accommodation would be an undue hardship, again, the employer may ban the employee from the workplace but, again, may not automatically terminate them without exhausting other available options.
While taking the vaccine will not be considered a medical examination under the ADA, EEOC cautions employers that the vaccine pre-screening questions asked by the employer must be “job-related and consistent with business necessity.” The agency also cautions employers to avoid asking questions about employees’ genetic information either as part of the prescreening questions or in the certification of vaccination.