Publication1 2021 Issue 1

14 KENTUCKY AUTO DEALER CONTINUED FROM PAGE 13 THE FLUIDITY OF THE PANDEMIC HAS YIELDED YET ANOTHER DECISION POINT FOR EMPLOYERS — CAN EMPLOYEES BE REQUIRED TO OBTAIN A COVID-19 VACCINE AS A CONDITION OF EMPLOYMENT? employees receive the COVID-19 vaccine. However, there are many open questions and significant legal issues for employers to consider under the EEOC’s guidance. Some key takeaways for employers from the updated EEOC guidance include: (a) The COVID-19 Vaccine is NOT a medical exam under the Americans with Disabilities Act (ADA) First, the EEOC’s guidance clarifies that the vaccine itself is NOT a medical exam. Under the ADA, “medical exams” which are a condition of employment must be job related and consistent with business necessity or be necessitated by a direct threat in the workplace. The EEOC stated that by simply administering a COVID-19 vaccine, employers would not be seeking medical information from the employee, and thus this would not rise to the level of a “medical exam” under the ADA. (b) Prescreening Vaccination Questions MAY Implicate the ADA For employers who choose to implement a mandatory vaccine requirement, the EEOC guidance provides some additional cautions related to prescreening questions (which are recommended by the CDC prior to administering a COVID-19 vaccine). In order to pass muster under the ADA, the prescreening questions must be “job-related and consistent with business necessity,” and to meet this standard, employers will need to have a “reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.” In assessing whether there is a “direct threat,” the EEOC advises employers to conduct an individualized assessment in taking into considerations the following four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. The EEOC makes clear that the concerns about the prescreening questions will not implicate the ADA where (1) an employer has offered a vaccine on a voluntary basis (i.e., employees choose whether to be vaccinated), which would mean that an employee’s refusal to answer the questions would only mean the employer could refuse to administer the vaccine; or (2) an employee receives an employer-required vaccine from a third party that does not have a contract with the employer (i.e., a pharmacy, broker or other health care provider), the ADA would not apply to prescreening questions. (c) Confidentiality Issues The EEOC also makes clear that the prescreening questions (whether voluntary or mandatory) and the responses to those questions should be maintained as confidential information, in a separate file (i.e., not the personnel file), in accordance with the provisions of the ADA. Those employers who administer vaccines themselves, or contract with a third-party provider to administer vaccines, should also be wary of their obligations under the Health Insurance Portability and Accountability Act (HIPAA) as to employee-provided information and vaccination records. (d) Employee Proof of a COVID-19 Vaccine Employers may request and require employees to show proof of receipt of a COVID-19 vaccination. Such a question does not amount to a disability-related inquiry in and of itself. The EEOC cautions employers who ask “why” an employee has not or cannot receive a vaccine. These follow-up questions may elicit information about a disability and would need to be “job-related and consistent with business necessity” in accordance with the ADA. Employers who do wish to require that employees furnish proof of vaccination should instruct employees not to provide any medical information in connection with the vaccination record in order to avoid implicating the ADA. (e) Disability-Related Exemptions to a Mandatory Vaccine Requirement The new EEOC guidance also provides some direction to employers for responding to employees who indicate they are unable to receive a vaccine due to a disability. The EEOC reiterates that employers can require that employees “not pose a direct threat to the health or safety of individuals in the workplace.” However, if a mandatory vaccine requirement has the effect of screening out individuals with disabilities, the “employer must show that an unvaccinated employee would pose a direct threat due to a ‘significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.’” The EEOC instructs employers to conduct an individualized assessment of four different factors to determine whether a “direct threat” exists. These include considering: (1) the duration of the risk;