Recently, the EEOC updated its COVID-19 employment practices guidance (Section K, specifically) to include information on how employers can approach the newly released COVID-19 vaccines under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act and the Genetic Information Nondiscrimination Act (“GINA”). As we previously discussed here (“EEOC Provides COVID-19 Guidance Via Webinar (Part I of II)”), here (“EEOC Provides COVID-19 Guidance Via Webinar (Part II)”), here (“EEOC Updates COVID-19 Technical Assistance”) and here (“EEOC Updates COVID-19 Technical Assistance”), the EEOC is regularly addressing employment practices amidst the ongoing COVID-19 pandemic.
Medical Examinations, Disability-Related Inquiries and the ADA
The EEOC helpfully clarifies that the administration of the vaccine is not a medical examination under the ADA. Because the employer is not seeking medical information from the employee by simply administering the vaccine, the EEOC does not view vaccine administration as a medical examination. But this doesn’t resolve all ADA-related issues for the employer.
The EEOC warns that, in the context of mandatory COVID-19 vaccines, the pre-screening questions necessary to safely administer the vaccine are generally subject to the ADA’s standards for disability-related inquires.
Business Necessity Standard & Direct Threat
More specifically, if an employer or third-party contracted by the employer is administering a mandatory vaccine and asking pre-screening questions, then the employer needs to show that these pre-screening questions are “job-related and consistent with business necessity” (the “Business Necessity Standard”).
The EEOC goes on to explain that pre-screening questions associated with mandatory vaccines would satisfy the Business Necessity Standard if the employer has a reasonable belief, based on objective evidence, that an unvaccinated person would pose a “direct threat” to the health or safety of self or others (“Direct Threat”). Elsewhere in the guidance, the EEOC articulates the elements of the employer’s Direct Threat analysis—an individualized assessment by the employer of four factors: (i) the duration of the risk; (ii) the nature and severity of the potential harm; (iii) the likelihood that the potential harm will occur; and (iv) the imminence of the potential harm.
Therefore, one of the main takeaways from the EEOC guidance is that—assuming the employer satisfies the Business Necessity Standard and Direct Threat analyses—mandatory COVID-19 vaccines (and the pre-screening questions) pass muster under the ADA and Title VII.
Additional Vaccine Strategies
The EEOC describes two additional scenarios in which COVID-19 vaccine pre-screening questions would not have to satisfy the Business Necessity Standard. The first is if an employer offers the vaccine on a voluntary basis (meaning, the employee chooses whether to be vaccinated). Under this scenario, the ADA requires that the employee’s decision to answer pre-screening questions must also be voluntary. Moreover, if an employee refuses to answer the voluntary pre-screening questions, then the employer may decline to administer the vaccine.
The second scenario in which COVID-19 vaccine pre-screening questions would not have to satisfy the Business Necessity Standard is where the employee receives an employer-mandated vaccine from a third party that does not have a contract with the employer, such as a pharmacy or other health care provider. The EEOC states that under these circumstances, the Business Necessity Standard would not apply to the pre-vaccination medical screening questions.
Stay tuned for Part II of this article, in which we’ll cover the following:
- ADA confidentiality considerations
- Can we ask for proof of receipt of a COVID-19 vaccine?
- How do we handle COVID-19 vaccine-related accommodation requests under the ADA? Under Title VII?
- Does the COVID-19 vaccine implicate GINA?
- Practical takeaways
If you have any questions on issues discussed in or related to this post, please contact:
- Dana Stutzman at (317) 977-1425 or dstutzman@wp.hallrender.com;
- Claire Bailey at (317) 429-3608 or cbailey@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
