Guidance on COVID Vaccine & Potential Discrimination Issues from EEOC

Wednesday, December 16, 2020

On December 16, 2020, the Equal Employment Alternative Fee (EEOC) up to date its Steering on COVID-19 (COVID) within the type of further FAQs. The EEOC has now answered the questions on many employer’s minds – whether or not employers can mandate workers to be vaccinated in opposition to COVID and what lodging could also be required underneath both a compulsory or voluntary vaccination program.

Importantly, the EEOC confirmed that mandating a COVID vaccination doesn’t in itself, violate the Individuals with Disabilities Act (ADA) as a result of it’s not a medical examination or inquiry.  The company cautioned, nonetheless, that pre-screening questions, posed earlier than the vaccine is run, might implicate the ADA’s provisions on disability-related inquiries.  Due to this fact, such questions should be job associated and in keeping with enterprise necessity.  To fulfill this commonplace the EEOC said that “an employer would wish to have an affordable perception, based mostly on goal proof, that an worker who doesn’t reply the questions and, subsequently, doesn’t obtain a vaccination, will pose a direct risk to the well being or security of her or himself or others.”    Employers can keep away from this situation by both (1) making the vaccine voluntary or (2) having workers get hold of vaccinations administered by a 3rd celebration that doesn’t have a contract with the employer (i.e. pharmacies, well being care suppliers, and so forth.).  Furthermore, the EEOC says that requiring proof of a COVID-19 vaccination is just not a disability-related inquiry that violates the ADA.

If an employer decides to mandate the COVID-19 vaccine, the EEOC cautions that such employers must individually consider worker requests to decide out of the vaccine based mostly on a incapacity and/or non secular beliefs.  Which means employers should prepare supervisors to establish such lodging requests and the way to reply to them, together with elevating the request/inquiry to Human Sources, participating within the interactive course of, and in search of supporting documentation for the requested lodging. The EEOC additional advises employers to overview and depend on each the CDC and OSHA and their respective suggestions and steerage when evaluating whether or not there may be an efficient lodging that might not impose an undue hardship. 

Particularly, the EEOC cautions that if an worker can’t be vaccinated because of a incapacity or sincerely held non secular perception, then it could be lawful to exclude the worker from the office however not essentially to terminate the worker.  Employers might want to contemplate different choices for lodging – together with telework, – and availability of protected or unprotected leaves of absence.  For some jobs, telework will not be possible, however there should still be different lodging to contemplate, together with requiring face shields, separation of labor areas, sustaining social distancing indefinitely, and so forth.

Moreover, the EEOC said that Title II of GINA is just not implicated when requiring an worker to be vaccinated and/or present proof of vaccination, as long as the employer is just not gathering genetic data in reference to worker vaccinations.  The EEOC refers employers to 29 CFR Part 1635.8(b)(1) for mannequin language to make use of to warn the worker to not present genetic data together with proof of vaccination (supplied that no genetic data is transmitted with that proof).  Particularly, the EEOC depends on the CDC rationalization of the mRNA know-how, which doesn’t work together with DNA and subsequently the vaccine alone doesn’t implicate GINA.  Nevertheless, the EEOC’s steerage offers that pre-screening questions do implicate GINA in the event that they contain the next inquiries:

Details about a person’s genetic assessments;

Details about the genetic assessments of a member of the family;

Details about the manifestation of illness or dysfunction in a member of the family (i.e., household medical historical past);

Details about requests for, or receipt of, genetic providers or the participation in medical analysis that features genetic providers by the a person or a member of the family of the person; and

Genetic details about a fetus carried by a person or member of the family or of an embryo legally held by a person or member of the family utilizing assisted reproductive know-how.

Though outdoors of the EEOC’s purview, unionized employers ought to acknowledge that requiring vaccinations shall be a compulsory topic of bargaining and contemplate opening discussions with their unions.  Exceptions may exist if the employer has discretion in implementing health-related work guidelines underneath a administration rights clause.  However, on condition that many Individuals are presently suspicious of the vaccine, discussions with the union and offering workers with training concerning the vaccine shall be a greatest observe.  Employers also needs to acknowledge that for non-unionized workers who oppose a compulsory vaccine, union organizing could also be an avenue by means of which they search out such safety and interact in “protected concerted exercise” protesting a compulsory coverage.

In sum, the most recent EEOC Steering affirms that, with obligations to accommodate for disabilities and/or non secular beliefs, employers might mandate their workers be vaccinated in opposition to COVID-19.  Given that it’ll doubtless be a number of months earlier than vaccines are extensively obtainable, employers don’t must make this resolution at the moment.  Finest practices presently contain (i) educating the workforce on the vaccine and its security and efficacy and (ii) evaluating incentives for voluntary vaccination packages for when the vaccine turns into obtainable.

Lastly, whereas the EEOC has jumped out of the starter’s gate with this early steerage, employers want to remain attuned to developments from state and native governmental companies who might take a completely totally different method. That is comparatively uncharted territory and relying what occurs to the variety of COVID infections and what we study concerning the varied vaccines will affect employers’ choices.  Due to this fact, authorized counsel must be consulted with every step of the way in which.