As healthcare workers across the United States began receiving the long-awaited COVID-19 vaccine, there are many speculations about Workplace COVID-19 Vaccination and EEOC involvement. The Equal Employment Opportunity Commission has released updated guidelines to clarify workforce mandates for Workplace COVID-19 Vaccines when they become widely available.
The EEOC, which also enforces stringent employment laws like the Americans with Disabilities Act (ADA), does not compare the vaccination as a “medical examination,” which employers are barred from enforcing at the workplace. Based on this, employers may require their workers to get a vaccine unless the employees have medical concerns or religious beliefs, preventing them from getting a vaccine. In this post, we will discuss the EEOC guidelines on workplace COVID-19 vaccination in detail.
Workplace COVID-19 Vaccination EEOC Guidelines:
COVID-19 vaccinations may involve GINA, the ADA, the Title VII, and raise questions about the applicability of various equal employment opportunity (EEO) laws. To simplify it, here we have some detailed information on the EEO’s guidelines and regulations with new details on workplace COVID-19 vaccine mandates.
Is the administration of an FDA-Approved Workplace COVID-19 vaccine to an employee a “medical examination” for purposes of the ADA?
No, the COVID-19 vaccination is not a medical examination. To make this clear, the Commission explained disability-related inquiries, medical investigations, and guidance. While the medical examination is a form of a check, a workplace vaccine is for the protection against contracting COVID-19 at the workplace. Hence, it is not a medical examination. However, there might be a pre-screening before allowing employees to take the Workplace COVID-19 Vaccination.
When an employee receives COVID-19 vaccination from the employer, will his/her health-related queries and screening questions be subjected to ADA standards for disability-related inquiries?
Any pre-vaccination medical screening questions are likely to fall under the disability and health concern queries. This means that such questions are “disability-related” under the ADA. Thus, if the employer requires an employee to receive the Workplace COVID-19 Vaccination, the employer must categorize these disability-related screening inquiries under “job-related” queries.
To meet this standard, the employer would need to decide, based on the objective evidence, that an employee who does not answer the screening questions does not receive a vaccination.
When asking an employee to show a COVID-19 vaccination receipt or proof, will that be a disability-related inquiry?
For many reasons, this question may not be disability-related. Employers may request proof of receipt of a COVID-19 vaccination to ensure workplace safety. Therefore, it can not make a disability-related inquiry. However, when an employer makes further queries to know why an employee did not receive a vaccination, it may elicit disability information and be subject to the pertinent ADA standards.
Where can employers learn more about Emergency Use Authorizations (EUA) of COVID-19 vaccines?
In the future, some of the FDA-approved COVID-19 vaccines may be available under EUA authorizations. Such approval is different from the initial FDA vaccine licensure. For more information, employers are encouraged to visit the FDA’s EUA page.
How should employers respond to an employee who indicates his/her inability to receive a COVID-19 vaccination because of a disability?
According to ADA regulations, an employer must have a qualification standard that requires screening those employees who shall not pose a direct threat to workplace safety. However, if such as safety-based qualification standard requiring workplace vaccination screens out an individual with a disability, the employer must show that the unvaccinated employee may pose a direct threat to the workplace health and safety management.
However, the employer cannot exclude those employees accessing the workplace or take any other action unless the direct threat cannot be reduced to an acceptable level. Under any circumstances, the employer may not terminate the worker. However, employers may physically exclude those employees from a worksite due to a current COVID-19 diagnosis or symptoms. Those workers may become eligible to take leave under the Families First Coronavirus Response Act, under the FMLA.
How should the employer respond when an employee indicates his/her inability to receive a COVID-19 vaccination because of a sincerely held religious practice or belief?
EEOC guidance explains beliefs, practices, and observances are protected. Upon knowing an employee’s sincerely held religious belief and anti-vaccination opinions, the employer must provide reasonable accommodation to the employee for the religious belief, practice, or observance unless such situations pose an undue hardship under Title VII of the Civil Rights Act.
How should an employer respond after failing to exempt or provide reasonable accommodation to an employee who cannot comply with a mandatory vaccine policy?
Suppose an employee cannot get a COVID-19 vaccination because of a disability or sincerely held religious belief. In that case, an employer may try to provide reasonable accommodations to the employee based on the situation. Upon failing to exempt or provide realistic accommodations, it would be lawful for the employer to exclude the employee from the workplace without terminating the worker. Employers need to determine if any other rights apply under the EEO laws or other federal, state, and local authorities.
Will the pre-vaccination screening questions, before administering a workplace COVID-19 vaccine, implicate Title II of GINA?
GINA defines genetic information about an individual, including his/her genetic tests, family genetic tests, and information about the disease manifestation in a family and genetic service in a family or family medical history. Pre-vaccination medical screening questions are likely to elicit GINA information and family genetic information as it involves disability. It is unclear what employers should include or exclude from the screening checklists with COVID-19 vaccinations, not to implicate GINA.
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