As we discussed here, the EEOC recently updated its COVID-19 guidance (Section K, specifically) to include information on how employers can approach COVID-19 vaccine issues under the Americans with Disabilities Act (“ADA”), Title VII of the Civil Rights Act and the Genetic Information Nondiscrimination Act (“GINA”). In our previous blog article, we addressed the implications of a mandatory vaccine under the Business Necessity Standard and Direct Threat analyses. In this article, we cover key additional COVID-19 vaccine questions under the ADA, Title VII and GINA.
Do ADA confidentiality protections apply to vaccine-related employee medical information?
Yes. The EEOC guidance explains that under the ADA, employers are required to keep confidential any employee medical information obtained in the course of a COVID-19 vaccination program (e.g., employee responses to pre-screening questions, identity of employees who have received the COVID-19 vaccine). Employers can maintain this confidentiality by keeping the employee’s medical information stored separately from an employee’s personnel file.
Can we ask for proof of receipt of a COVID-19 vaccine from our employees?
Yes. The EEOC guidance makes it clear that simply requesting or requiring proof of receipt of a COVID-19 vaccine from employees is permissible. This is because, according to the EEOC, there are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. As a result, requiring proof of receipt of the vaccine is not a disability-related inquiry.
Note, however, that follow-up questions from the employer—e.g., “why didn’t you get a vaccine?”—could elicit information about a disability and, as a result, would be subject to the Business Necessity Standard.
Additionally, if an employer requires its employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer should inform the employees that they are not to provide any medical information as part of the proof of receipt in order to avoid implicating the ADA.
How do we handle COVID-19 vaccine-related accommodation requests under the ADA and Title VII?
For those employers who are mandating COVID-19 vaccines, which the EEOC indicates is a generally acceptable practice, employers should continue to watch for circumstances in which a reasonable accommodation under the ADA or Title VII might be necessary.
Under the ADA, employers can have a qualification standard that requires employees to not pose a “direct threat” to the health and safety of the individuals in the workplace (including clients and patients). Therefore, if employees cannot be vaccinated due to a disability and the employer determines that they pose a “direct threat” in the workplace, then the employer and employee should engage in the good-faith interactive process to try and find a reasonable accommodation. The EEOC guidance explains that an automatic exclusion from the workplace is not appropriate. Meaning, the employer should first try to determine if a reasonable accommodation in the workplace (e.g., isolated office location or use of plexiglass barriers) would reasonably eliminate or reduce the “direct threat” posed by the unvaccinated employee. And if an accommodation in the workplace isn’t feasible, then the employer and employee should then explore potential accommodations outside of the workplace (e.g., telework for a reasonable amount of time).
With respect to Title VII, the EEOC guidance outlines an accommodation process that is similar to the process under the ADA. Under Title VII, a reasonable accommodation must be given to an employee with a sincerely held religious belief, practice, or observance which prevents the employee from receiving the vaccination, unless the accommodation would pose an undue hardship. The EEOC guidance explains that “undue hardship” under Title VII means more than a de minimis cost or burden on the employer. The EEOC also explains that because the definition of religion is broad, an employer should assume a request for a religious accommodation is based on a sincere religious belief.
As a practical matter under Title VII, those employers who are mandating COVID-19 vaccines could handle religious accommodation “exception” requests the same way they handle “exception” requests for mandatory flu vaccines. Typically, this involves a designated employer committee or individual that is responsible for receiving the exception requests, interacting with the employee to better understand the underlying religious considerations and ultimately granting or denying the requested religious exception to the mandatory vaccine.
How does the COVID-19 vaccine implicate GINA?
Title II of the GINA prohibits an employer from using the employee’s genetic information to make decisions related to the terms, conditions, and privileges of employment. But the EEOC guidance clarifies that administering a COVID-19 vaccination to employees or requiring employees to provide proof of receipt does not implicate GINA.
With respect to pre-vaccination screening questions, the EEOC explains that GINA could potentially be implicated and it depends on the specific screening questions that are asked. Per the EEOC guidance, if the pre-vaccination questions do not include any questions about genetic information (e.g., family medical history information), then asking the screening questions does not implicate GINA.
On the other hand, if the pre-vaccination screening questions do include questions about genetic information, then GINA would be implicated. In that case, the EEOC explains that employers who want to ensure that employees have been vaccinated should request proof of vaccination instead of administering the vaccine themselves. Relatedly, if employers require proof of vaccine, then they should instruct their employees not to provide any genetic information as part of the proof.
Practical Takeaways
Because the EEOC’s COVID-19 vaccination guidance builds on and incorporates prior employment recommendations issued from the agency, employers can utilize and re-purpose a number of tools that they already have at their disposal when dealing with COVID-19 vaccination issues. If you’re going to mandate COVID-19 vaccines for your workforce, here are a few practical takeaways:
- Mandatory vaccines are permissible from a federal law perspective, but consider double-checking for any more restrictive measures under state or local laws;
- Determine if vaccines will be mandated for all job classes, or just certain job classes (e.g., only patient- or client-facing positions);
- If vaccines are mandatory for some, but not all job classes, consider establishing the order of priority for the selected job classes;
- Although you can ask for proof of receipt of a COVID-19 vaccine, stay away from asking follow-up questions that elicit additional medical information or genetic information from the employee or the employee’s provider;
- If an employee can’t be vaccinated due to a disability, engage in the good-faith interactive process. Don’t automatically exclude the employee from the workplace—or automatically terminate employment—until reasonable accommodation options have been considered;
- If an employee can’t be vaccinated due to religious beliefs, follow and/or further develop your vaccine exemption policy and procedure (vaccines exemption request forms; reasonable accommodation protocols; review committee for exemption requests; etc.); and
- Be sure to maintain the confidentiality of any employee medical information obtained in the course of a COVID-19 vaccination program.
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 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.
