Just this week, the U.S. Equal Employment Opportunity Commission (the EEOC) issued a guidance in Q&A form on the newly-timely question of whether or when employers may require employees to receive one of the new COVID vaccinations from Pfizer or Moderna. The nine Q&As dealt with the implications of the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, and “GINA,” the Genetic Information Non-Discrimination Act.
The nine were tacked on to the end of a long Q&A the EEOC has been adding to since March, which is called “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws and Were Afraid to Ask.” (Just kidding bout the last part!) The Q&A is chock full of helpful information, though it doesn’t actually have the force of law, like a statute or a regulation.
Some simplified takeaways from the nine Q&As about vaccinations:
While a mandatory vaccination is not a “medical examination” under the ADA, pre-vaccination screening questions might be “medical inquiries” regulated by the ADA. So beware!
Asking an employee to provide proof of a COVID vaccination is not an “medical inquiry” under the ADA, but asking an employee why he or she did not have a vaccination could be. Also beware!
An employer may exclude from the workplace (but not necessarily terminate) an employee who says she or he is unable to receive a vaccination because of a disability if having the employee in the workplace would constitute a “direct threat” to the health and safety of others, if a reasonable accommodation could not be found.
If an employee states that he or she will not receive a vaccination because of a sincerely-held religious belief, the employer must provide a reasonable accommodation to the employee, unless doing so would cause it an undue hardship. If one were not available, the employee could be excluded from the workplace, but not necessarily terminated.
Asking an employee to provide proof of a COVID vaccination does not violate GINA (see above!), but pre-vaccination screening questions might elicit “genetic information,” such family medical history. Watch out!
The EEOC’s nine Q&As do not pretend to cover the implications of employer-mandated COVID vaccinations under other law, such as state claims for invasion of privacy. That’s another story!