Guest Commentary By Lindsay Ryan and Grant Horton, Polsinelli
EEOC Issues Guidance on COVID-19 Vaccine and the
In response to the Emergency Use Authorization granted by the U.S. Food and Drug Administration for the COVID-19 vaccine, the Equal Employment Opportunity Commission published guidance outlining employer compliance mandates under the Americans with Disabilities Act, Title VII of the 1964 Civil Rights Act and the Genetic Information Nondiscrimination Act. Te EEOC’s guidance addresses a number of pressing questions posed by employers and employees alike regarding the vaccine. Some of the more important takeaways from guidance (
eeoc.gov/wysk/what-you- should-know-about-covid-19-and-ada-rehabilitation-act-and- other-eeo-laws) include the following.
Te administration of an FDA-approved or authorized COVID-19 vaccine to employees is not a “medical examination” for purposes of the ADA and, therefore, may generally be required by employers under federal law.
Although the vaccine is not considered a “medical examination” under the ADA, pre-screening questionnaires given to employees by an employer in connection with a vaccination may implicate the ADA’s provision on disability-related inquiries. In such case, the employer would need to demonstrate that the pre- screening questions are “job related and consistent with business necessity.”
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If an employer requiring a COVID-19 vaccine determines that an employee who cannot be vaccinated because of a disability poses a direct threat at the worksite, the employer cannot exclude the employee from the workplace (or take any other action) unless there is no other way to provide a reasonable accommodation (absent an undue hardship) that would eliminate or reduce this risk. Under the ADA, “undue hardship” is defined as “significant difficulty or expense” incurred by the employer in providing an accommodation.
Employers requiring the vaccine also must provide a reasonable accommodation for an employee’s sincerely held religious belief, practice or observance that prevents the employee from receiving the vaccination unless doing so would pose an undue hardship under Title VII. Notably, under Title VII, “undue hardship” is defined as having more than a de minimis cost or burden on the employer.
Title II of GINA is not implicated when an employer administers a COVID-19 vaccine to employees or requires employees to provide proof that they have received a COVID-19 vaccination. However, if any pre-screening questions by the employer ask about genetic information (e.g., immune systems of family members), such inquiries could violate GINA.
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