December 17, 2020
In our prior Alert, we advised that the Equal Employment Opportunity Commission (EEOC) would provide updates to its COVID-19 guidance, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” to address employer rights and responsibilities related to COVID-19 vaccination policies. Right after our Alert was issued, on December 16, 2020, the EEOC updated its COVID-19 guidance with questions and answers for employers who seek to have their employees inoculated against this deadly virus.
Administering a Vaccine
Initially, the EEOC stated the administration of a COVID-19 vaccine to an employee by an employer or a third party with whom the employer contracts is not a “medical examination” under the Americans with Disabilities Act (ADA). The EEOC reasons that in administering a vaccine, the employer is not seeking information about an individual’s impairments or current health status.
However, the EEOC notes that according to the CDC, healthcare providers should ask certain questions before administering a vaccine to ensure there is no medical reason that would prevent the person from receiving the vaccination. Pre-vaccination medical screening questions are likely to elicit information about a disability, and thus if asked by the employer or a contractor on the employer’s behalf, are “disability-related” under the ADA. To ask such pre-screening questions, the employer would have to show the inquiries are “job-related and consistent with business necessity.” To meet this standard, the EEOC asserts an employer would need a reasonable belief, based on objective evidence, that an employee who does not answer the questions (and thus does not receive a vaccination) will pose a direct threat to the health or safety of herself/himself or others.
The EEOC provides that there are two instances when pre-screening questions can be asked without needing to satisfy the “job-related and consistent with business necessity” requirement. First, when an employer’s COVID-19 vaccination program is voluntary. Second, when an employee receives an employer-required vaccination from a third party not contracted with the employer, such as a pharmacy or the employee’s own healthcare provider. The EEOC’s guidance may encourage employers to avoid implementing their own employer-provided vaccination programs and instead rely on pharmacies and healthcare providers to handle vaccinations. Pharmacies are already administering COVID-19 vaccines to employees and residents of some long-term care facilities and are expected to serve a critical role during the vaccination rollout.
The EEOC also stated that asking or requiring an employee to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry. The EEOC cautions employers to warn employees not to provide any medical information as part of the proof of vaccination in order to avoid implicating the ADA.